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Patrick, Esq.
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Category: Employment Law
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I am a salaried Director of Home Services. I am on call for

Customer Question

I am a salaried Director of Home Services. I am on call for issues staff cant handle 24/7
In addition, they have now forced to take an on call phone for staffing problems in order to give the Staffing Coordinator a day off, because she works 24/7. I also must do record keeping on Saturday.Another woman who could share these responsibilities in the office will not participate to help because they say her physically needy husband needs her.
My question is -is this against the law? and can I be compensated for having to limit my weekend to one day, because I have to remain by and on the phone?
Submitted: 2 months ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 2 months ago.

Hello and welcome. My name is ***** ***** it will be my pleasure to assist you. Please just give me a moment to review your question....

Expert:  Patrick, Esq. replied 2 months ago.

No law prohibits an employer from requiring an employee to be on call. The question is whether the on call time is compensable time.

Generally speaking, the compensability of on call time is determined by 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 while "on call," the time will be compensable and thus must be paid at a rate equal to or exceeding minimum wage (it must be paid at the employee's regular hourly rate unless the employer expressly states otherwise). On the other hand, if the employee is free to go about their ordinary business while on-call, with the exception of when they are actually called upon to work, that time will not be compensable at all.

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 that have traditionally been 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.

Ultimately, whether you meet the "waiting to be engaged" standard is a question of fact that is up to a court or the Labor Board to decide. That said, the facts here certainly suggest that the on-call time is compensable. Attempting to enforce your right to be paid for on call time is a form of legally protected activity, which means your employer is legally prohibited from retaliating against you for it. So, if you talk to them and they will not modify their on-call requirements or pay you for your on-call time, you can take legal action and be insulated from retaliation. The best way to pursue a claim would typically be to file a wage claim with the labor board.

I hope this addresses your question. If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

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