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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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Experience:  Significant experience in all areas of employment law.
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my boss has started to require us to call in the morning, and

Resolved Question:

my boss has started to require us to call in the morning, and rather than come in to work, we may be put "on- call" for the first 4 hours of our shift (paid at 1/2 time per hour) and come in to work the second four hours of the shift.
this has reduced my income.
Is this legal in California?
I am an hourly full time worker in the health care industry.

Thank you. Going in to a meeting very soon regarding this issue, appreciate a reply asap.

Thanks!

Carla Bolger
Submitted: 9 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 9 months ago.

Carla,

Good afternoon and thank you for entrusting me to assist you. My name is XXXXX XXXXX X will do everything I can to answer your question.

You mention that you are working with a union rep. Conceivably, this scheduling practice may cosntitute a violation of your collection bargaining agreement, and so your first step should be to review, with the assistance of your union rep, your contract for any potentially relevant contractual provisions which limit your employer's right to put you on call like this. I am in no position to comment on the particulars of your contract because I have not and cannot review it in its entirety through this online forum.

Aside from potential CBA violations, California recognizes something called "reporting time pay." Reporting time pay applies instances where an employee actually reports to work expecting to work a specified number of hours and is deprived of that amount because of inadequate scheduling or lack of proper notice by the employer. (See DIR publication here: http://www.dir.ca.gov/dlse/FAQ_ReportingTimePay.htm) Reporting time pay would entitle an employee who shows up for a subsequently cancelled shift half of what their pay would have been for the shift, with a maximum pay entitlement of 4 hours.

However, in the present circumstance you are not actually showing up to work, you are just being cancelled (or postponed) at the last minute. This is not illegal. Moreover, even if you were showing up, you are still receiving half pay, which would be in compliance with the reporting time pay requirements. So, unless something substantially changes here, your employer's actions, while coming close to triggering reporting time pay requirements, do not trigger any legal violation in that respect.

The only other issue here is the compensability of your on call time. Under CA law, employers are only under obligation to pay an employee for on-call time if the employee's personal time is so restricted that they cannot engage in personal activities. The Supreme Court has described this test for determining the compensability of on-call time as whether a worker is "waiting to be engaged," or "engaged to be waiting," only the latter constituting compensable time.

Assuming your on-call time constitutes compensable time, which it likely does because you really are substantially restricted during that time, your employer need only pay you a rate equal to minimum wage. On-call time need not be paid at the employee's ordinary rate of pay, again unless there is some collective bargaining agreement or contractual provision stating to the contrary.

In short, any conceivable remedies you may have here would be through your union and CBA. Absent such contractual protections, the practices of your employer, while quite unfortunate, are not in violation of any law unless your on-call time is being paid at a rate less than minimum wage ($8/hr).

I am truly sorry that I don't have more favorable information to provide you, but you are here for accurate information about the law and it would be a tremendous disservice if I were to mislead you for the sake of providing good news.

Please do not hesitate to contact me with followup question if you have any. I am not done assisting you until you are absolutely satisfied with my service.

Very best wishes moving forward.

Patrick, Esq., Lawyer
Satisfied Customers: 6690
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 9 months ago.

Thank you for your prompt honest assessment-


That was exactly what I needed to know.


 


Carla Bolger

Expert:  Patrick, Esq. replied 9 months ago.
Carla,

You are very welcome! I am glad I could provide some clarity with regard to the law in these circumstances. Please feel free to let me know if you have any further concerns. If I have answered your question, I would be very grateful for a positive rating of my service so that I may receive credit for assisting you.

Kindest regards.

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