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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 4466
Experience:  Exclusively practice labor and employment law.
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I was encouraged to contact a lawyer about my work situation.

Customer Question

I was encouraged to contact a lawyer about my work situation. I'm an hourly store manager but when I am not on the clock I'm on call. 24/7. I'm not allowed to leave town because if someone calls off I have to go in and work. I've had an attendance counseling from not making it into the call off shift fast enough. (last minute call off, i have 2 kids to take to daycare) Even if I take a pto day I am still responsible for covering any call offs. When I was on fmla I had to find someone to cover my calls for me. No one wants to cover my calls so I haven't seen my family(3hrs away) since last year. Is it legal for them to require me to stay in town when I'm not getting paid those hours? I don't get to enjoy my time away from work.
Submitted: 5 months ago.
Category: Employment Law
Expert:  John replied 5 months ago.
The best way to answer this is to provide the department of labor regulation and then explain what that means to you. Here is the regulation:"An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))"First, to be clear, you can be required to be on call all the time. There simply is no law that prevents that. What the law does mandate however is what if anything you must be paid for that time. As you can see, if you cannot use the time for your own purposes, it must be paid time. In reality, if you cannot leave your house or must stay within within a few miles of the employer premises so you can be there in less than an hour, you must be paid for that time, because they are effectively getting your labor. On the other hand, if you just have to take a phone call, that doesn't limit your use of time these days because cellphones are owned by virtually everyone. Of course the time you do spend answering a phone call or working is to be paid. The biggest factor in your case is that you must stay within X miles/minutes of travel of the facility - the argument you can make is that it effectively limits what you can do. Courts have gone both ways on whether that alone hampers the employee use of time. If it happens frequently I have believe you have a good case that all your on call time should be paid time.

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