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John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 2873
Experience:  Exclusively practice labor and employment law.
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I work for a non-for-profit in the state of Illinois. I am

Customer Question

I work for a non-for-profit in the state of Illinois. I am a non-exempt employee that is paid an hourly wage. On my pay stub it looks like salary though, but my wage agreement has hourly at $11.19/hour. Included on that wage agreement is a $3,000 "stipend" for on-call services that our company provides after office hours. Yet on my pay stub, there is nothing distinguishing my rate of pay and where it comes from. It just says an hour number and then a total of wages earned. I work for a mental health facility and our agency provides on-call crisis intervention services. We are required to be on call approximately 6 days a month. From my own research, I know we are "waiting to be engaged" on-call employees. My question is, even though there is a stipend for on-call, is my company required to pay us for any time working for the company if we are called out? For example, I was on call Friday 10/11 from 8am until 8am on 10/12. In that time, I spent 9 1/2 hours tending to an on-call issue. Our company offers "crisis time" meaning if we get called out an evening during the work week, we can take time off to rest prior to going back into work. However, we are not allowed to use "crisis time" if it is accrued on a weekend. I feel like I'm getting screwed here and I'm tired of it. Thank you for any help you can provide!
Submitted: 11 months ago.
Category: Employment Law
Expert:  John replied 11 months ago.
Hi, My name is XXXXX XXXXX I’m happy to assist you with your question today.

The answer to your specific question is yes you are required to be paid the time you are on call regardless of the "stipend". The correct analysis or breakdown of hours owed would be a on a workweek basis, counting all the hours spent on call, then reducing that amount by the "stipend", which gets you to the weekly amounts owed. "Crisis time" is not relevant to the determination of hours owed. You can go as far back as three years of this to determine the total owed. You may want to file a charge with the Dept of Labor.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

Customer: replied 11 months ago.

Just for clarification: you said I'm required to be paid the time I am on call. Is that just the time I'm performing duties for the company or the entire time I'm waiting for a call out?


 


Secondly, you stated that reducing the amount of hours spent on call on the stipend? Meaning I shouldn't get paid until I go over the $3000 mark for the year?


 


Third, "crisis" time is the way the company tries to get away with not paying over time. It's almost like "flex time"

Expert:  John replied 11 months ago.
Ryan,

In terms of being on call - in a nut shell whether the time is compensable depends on whether you can effectively use that time for your own purposes - e.g., can you go grocery shopping, work on your yard or whatever else you like to do versus whether you have to basically sit in your house and wait to see if anyone calls for you.

The employer would be allowed a $3,000 offset against whatever time you compute for your hourly on call time because the $3,000 was I believe attributed to the on call time to begin with. In other words, they attempted to pay some of it, but were far lower than it should have been.

The overtime laws do not have any provision for "crisis" or "flex" time, except for a small amount of cases in which what is called comp time is in play. But that is not the case in your matter...in other words you do not have a pre-determined agreement with the employer to be allowed 1.5 hours off with pay for every hour of overtime you work.
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 2873
Experience: Exclusively practice labor and employment law.
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Customer: replied 11 months ago.

So it has nothing to do with over-time pay? I just have to calculate whether or not I have worked approximately 268 hours on call (which means I would never do more than 4 hours of "on call" a week to go into over time) to equal the $3000 "stipend."


 


That's were I get confused. I'm considered a non-exempt employee. Aren't I entitled to over-time pay for any hours over 40 worked during a week? Or is that time and a half pay calculated and deducted from the "stipend."


 


It is such a tangled web and it is very confusing. I think I work for a bunch of shifty people.

Expert:  John replied 11 months ago.
If the hours are in excess of 40 per workweek they'd qualify for overtime.

Do it this way - 1) first compute in a spreadsheet what you are owed in straight and overtime hours for being on call, then 2) deduct the approximate $57.69 per workweek you are paid to be on call, 3) take the weekly amount of straight and overtime you are owed, then deduct the $57.69 from each workweek, and finally 4) sum all the weekly amounts in which you are owed some amount (you can go back as far as 3 years of liability to you) - this will be the total owed.

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