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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5221
Experience:  Extensive experience representing employees and management
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My employer is attempting to start an after-hours (nights,

Customer Question

My employer is attempting to start an after-hours (nights, weekends, holidays) stand-by program to handle client emergency calls and emails. (We are a computer company)

He is not offering compensation for it. The techs are hourly, yet he is expecting them to check company email on their own time at home, and for one of them to carry the emergency cell phone, again at no compensation.

His rationale is that if they get a billable job out of it, they get overtime for handling the problem.

Also, if a tech decides not to take part, their worth to the company is diminished and their regular pay will be adjusted accordingly.

Is this legal?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer

I'm sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service today.


An employer is obligated to pay an employee for on-call time when the employee is under the control of the employer.

These factors, set out in a
federal case, Berry v. County of Sonoma (1994) 30 F.3d 1174, include whether there are excessive geographic
restrictions on the employee’s movements; whether the frequency of calls is unduly restrictive; whether a fixed time
limit for response is unduly restrictive; whether the on-call employee can easily trade his or her on-call
responsibilities with another employee; and whether and to what extent the employee engages in personal activities
during on-call periods.


So, in the case of the employee needing to carry the phone, and probably respond in a certain amount of time, especially if he or she needed to be in a certain area, he or she would be entitled to compensation for that time.

Whether the employees who have to check email would be compensated would depend on the factors above.

If the employees are denied compensation, they can file a wage claim with the Department of Industrial Relations using the information available online here:

http://www.dir.ca.gov/dlse/howtofilewageclaim.htm


I hope the above information is helpful.

Please let me know if you have any clarifying questions as I want to ensure that you are completely satisfied with my service.

If not, please remember to rate my answer positively so I get paid for my work.

Thanks and best of luck!
Joseph, Lawyer
Satisfied Customers: 5221
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Joesph,


 


I paraphrased what he said. Here's the quote. I didn't want to quote until I saw how the service works. :) Please let me know if you can add anything based on this: Thanks!


---


My ultimate goal..


 


There will be no additional compensation for checking email after hours.


There will be no "stand by" pay.


 


The compensation people will receive is the same as it has always been. They are expected to put a job in and get paid for their time and will receive their bonus/commission too.


 


The person who takes home the In-Con support phone has the potential benefit of getting this pay. However, if they do not participate in taking this responsibility, then their regular pay will also be adjusted (as it has always corresponded with each person's benefit to the company).


 


People need to see the bigger picture. Helping customers make everyone more money. If they want more money, they need to put in the effort. This is the primary job of you and I. We need to keep attitude's positive. If people have a negative attitude, it is contagious and will destroy anything we are working towards.

Expert:  Joseph replied 1 year ago.
Unfortunately, there are no specifics about restrictions on someone's time while they are using the I-Con, or how often they need to check their email when 'not working.'

If there were, it would definitely strengthen the case for compensation.

It will need to be based on what those measures of control are. (E.g., can someone go to a movie, go out, etc. or are they required to remain at home checking their email or listening for the I-Con).
Customer: replied 1 year ago.

OK. Thanks, Joesph.

Expert:  Joseph replied 1 year ago.
Thank you, Chris,

Happy to help and best of luck!

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Joseph
Joseph
California Employment Lawyer
5221 Satisfied Customers
Extensive experience representing employees and management