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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 27224
Experience:  Former judicial law clerk, lawyer
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We were recently changed from salary to hourly with our

Customer Question

We were recently changed from salary to hourly with our employer citing a change in IRS regulations as the reason, (no specific code reference cited, even though requested). As part of our job description we have to make ourselves available for "on-call" from time to time. Now that we are hourly, we are not being compensated for this "on-call" time in any way. Is there a New Mexico or federal statute that addresses this? Is there somewhere to file a complaint concerning this matter? Thank you. *****
Submitted: 2 months ago.
Category: Employment Law
Expert:  Lucy, Esq. replied 2 months ago.

Hi Chuck,

I'm Lucy, and I'd be happy to answer your questions today.

Congress recently passed a law that prohibits an employee from being classified as exempt unless they make at least $913/week, which is a big increase from the previous rule of $455. That could be why your employer is changing many of you to hourly from exempt.

The Fair Labor Standards Act generally requires that employees be paid for on call time if they are not allowed to leave the premises and doesn't require that they be paid when they're allowed to go home. Note that they WOULD have to pay for every minute you spent working, so if they're calling you for advice while at home, track the minutes. That should be paid (at time and a half if you've worked 40 hours that week). However, an employer who places significant restraints on an employee's freedom while they are on call could be required to pay employees. The test is whether you're unable to use the on call time effectively for your own purposes. This is a fact-based analysis, so it's different for everyone. Some things to consider when deciding whether they have to pay you are:

  • Is there a geographic restriction, like you can't go more than 50 miles from the work site?
  • Can you trade on-call time with one of your co-workers if necessary (like when you're on vacation or ill)?
  • How often do they actually call you? Nightly telephone calls or returns to work make it more likely they'd have to pay you than if you get a 10 minute call once every couple of months.
  • Are you required to do anything other than give them a phone number where you can be reached?

There unfortunately isn't anywhere you could file a complaint about being changed from exempt to hourly - that is the employer's prerogative, and it could be required under the changes to the law. If you believe that your on-call time is really work time that you're not getting paid for, you'll have the ability to file a Complaint with the Department of Labor and ask them to investigate. The state of New Mexico will help you collect unpaid wages if you make a demand to your employer that is denied, but hopefully it won't come to that.

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Expert:  Lucy, Esq. replied 2 months ago.

Did you have any other questions about this?