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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I have an employee who works full time (40 hours a week) and

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I have an employee who works full time (40 hours a week) and is on call to answer calls for service on the weekend, and after hours. The employee is non exempt and is not restricted in the use of her time. The employee is on call to handle requests for interpretive services for a hospital. When she receives a call, her duty is to call interpreters to find one who will go to the hospital and assist with the interpretation. Her responsibility ends when she either can find an interpreter to respond, or to report to the hospital that she cannot find someone. Am I required ot pay her for other than her time to handle the call. Should I be paying her to be "on call". I have been researching online and think I know the answer, but want to be sure. We are in California.
Submitted: 10 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 10 months ago.
Hello and thank you for entrusting me to assist you. My name is XXXXX XXXXX I will do everything I can to answer your question.

A couple questions for you--how quickly must the employee come to the hospital if their personal interpetive services are required? Also, approximately how frequently are they called? (i.e. twice per on-call shift, once every other on-call shift, etc.).

I very much look forward to helping you on this matter.
Customer: replied 10 months ago.

The employee I am inquiring about just now is the one who gets the call from the hospital and then must find an interpreter to respond to do the actual interpreting at the hospital. The employee who gets the call needs to be paid for the time she handles the call and finds an interpreter who will respond. So, do I need to pay this employee to be "on call" in addition to the time it takes to locate an interpreter. The employee receives 2 ot 3 calls maximum during a weekend, sometimes only 1.


I will have more questions about the imterpreters, which I could do as a follow-up.


 

Expert:  Patrick, Esq. replied 10 months ago.

Carol,

Thank you very much for your clarification. As you may have already determined through your own research, the threshold issue when it comes to compensability for on-call time is the extent to which an employee's freedom to engage in personal activities while "on call" is impeded.

If an on-call employee is completely unrestricted to use his or her time for their own purposes, they are not under the "control of the employer" and, thus, need not be paid. HOWEVER, if the employee is so restricted that she cannot pursue personal activities and come and go as they please, the employer is considered to have direction and control of the employee and the on call time must be paid at a rate no less than minimum wage.

The California Supreme Court articulated a two-part test for what does and does not satisfy the threshold degree of "control" for compensable on-call time in the seminal case of Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403.

The first part of the Madera test examines whether the restrictions placed on the employee are primarily directed toward the fulfillment of the employer's requirements and policies. The second part examines whether the employee is substantially restricted so as to be unable to attend to private pursuits.

Regarding the second prong of the test, which is generally the focus of any on-call analysis, the following considerations are most frequently taken into account:

(1) whether there are excessive geographical restrictions on employees' movements; (2) whether the frequency of calls is unduly restrictive; (3) whether a required response time is unduly restrictive; (4) whether the on-call employee can easily trade his on-call responsibilities with another employee, and (6) the extent of personal activities engaged in during on-call time.

In a circumstance such as what you descirbe, a court would be very unlikely to find the employee's on-call time (i.e. NOT when they are actually handling requests for interpretive services but simply expected to be available to take such requests) as NON-compensable. The employee has the ability to trade their on-call responsibilities with other workers, and is relatively unrestricted in their ability to engage in personal/recreational activities given the infrequency of calls and the fact that most calls do not require the employee to personally show up at the hospital.

I suspect I am confirming your own conclusions with my answer. By all means, though, please feel free to ask followup question or request clarification if you so require. I am not done assisting you until you are absolutely satisfied with my service.

Have a very pleasant rest of your evening.

Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 7151
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 8 other Employment Law Specialists are ready to help you
Customer: replied 10 months ago.


So it does not matter that she is non-exempt?

Expert:  Patrick, Esq. replied 10 months ago.
If the employer were exempt and paid a flat rate salary, on-call time would not be an issue at all, since the flat salary would compensate the employee for any and all work they perform for their employer (that's the whole idea of a salary-exempt compensation structure). If the employee were exempt but paid hourly (which is permissible under the professional exemption), you'd need to consider whether on-call time is compensable, but even if it was, it wouldn't factor into any overtime calculations since the employee isn't entitled to overtime.

In short, if the employee was salaried exempt, on-call time wouldn't matter, and idf they were hourly-exempt, they may still be owed on-call time but it would never be paid at an overtime rate.

I hope this answers your question. Please let me know if I can be of any further service.

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