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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 11272
Experience:  Significant experience in all areas of employment law.
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In the state of new hampshire on a vol. fire dept can a chief

Customer Question

in the state of new hampshire on a vol. fire dept can a chief make it mandatory to be on call when you dont get paid if there are no calls
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.
The compensability of on-call time depends on the unique circumstances of the employment. The threshold issue is the extent to which an employee's freedom to engage in personal activities while "on call" is impeded. If the employee's personal time is so restricted that they cannot engage in personal activities, the time will be compensable. On the other hand, if the employee is free to go about their ordinary business while on-call, that time will not be compensable.
The Supreme Court has described this test as whether a worker is "waiting to be engaged," or "engaged to be waiting," only the latter constituting compensable time. Factors relevant to making this assessment include the following:
- Geographical restrictions;
- Required response time;
- Frequency of calls during the period;
- Use of a pager (which gives the employee freedom to be away from a telephone);
- Extent personal activities are actually engaged in during on-call time;
- Provisions of any employment agreement as to treatment of on-call work;
- Degree to which employees can trade on-call responsibilities; and
- Whether the nature of the work precludes the employee from engaging in certain recreational activities, such as drinking alcohol, while on call.
If, based on the the criteria outlined above, you can make the argument that your on-call time is compensable, then your best recourse would be to file a wage claim with the New Hampshire Department of Labor, who will investigate and order your employer to pay back pay if they find cause. See here for the complaint form: http://www.nh.gov/labor/documents/wage-claim.pdf
Your employer will be legally prohibited from retaliating against you as a consequence of you attempting to enforce your right to be paid, and so any adverse employment action taken against you as a consequence of you raising this issue (i.e. termination or a reduction in hours) would give rise to an entirely separate claim for damages. This holds true regardless of how your wage claim ultimately pans out.
I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.
If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.
Customer: replied 1 year ago.
so if someone is fishing and misses a call he should not of been put on probation and then later terminated on a dept that only pays you a stipend if there is a call.
Expert:  Patrick, Esq. replied 1 year ago.
Not exactly. The rules above govern whether on-call time is compensable, but that is completely separate from an employer's ability to terminate an employee for not being available as the employer has requested. The employer retains the right to terminate an employee for this reason. The employee can pursue a claim for unpaid wages, but not for wrongful termination since the reason for termination, while unfair, is not illegal. I hope this helps. Again, please feel free to let me know if you have any further concerns.
Customer: replied 1 year ago.
would the chief who is a dept. head need permission from the selectmen to terminate someone
Expert:  Patrick, Esq. replied 1 year ago.
That is not so much a legal question as it is a question about the power hierarchy at your place of employment. At the risk of sounding circular, the department head has termination authority if his superiors have vested him with that authority. You can try appealing to a higher level but no law expressly limits who can terminate someone. I hope this helps. Again, 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. Very best wishes.
Expert:  Patrick, Esq. replied 1 year ago.
Hello again,
I just wanted to followup with you to make sure that you did not have any further questions or concerns. For some unknown reason, the experts are not always getting replies or ratings (which is how we get credit for our work) that the customer thinks have gone through. In your case I have not yet received either. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the site administrator.
In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed.
Very best wishes.