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Patrick, Esq.
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What is the California labor law regarding on-call hourly employees?

Customer Question

What is the California labor law regarding on-call hourly employees? For example is it legal for a company to require an hourly employee to be accessible for response to calls at all times?
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 5 years ago.
Hello and thank you for entrusting me to answer your question. I hope that I can provide some illumination on this issue of on call time for you.

In California, an employee is entitled to compensation for any time that he or she is subject to the "control of the employer" or "suffered or permitted to work." If an 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 she pleases, the employer is considered to have direction and control of the employee, even when the employee is simply "on call."

The Department of Labor Standards Enforcement has adopted the test which the California Supreme Court announced in the case of Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d 403, and will apply that test to determine the extent of control and, therefore, whether on call time is compensable.

The Madera court applied a two-part preliminary analysis: The first part of the test measures whether the restrictions placed on the employee are primarily directed toward the fulfillment of the employer's requirements and policies. Second, is the employee substantially restricted so as to be unable to attend to private pursuits?

Regarding the second prong of the test, the Madera court also indicated that the trier of fact must examine the restrictions cumulatively to assess their overall effect on the worker's uncompensated time. In other words, the net impact of the restrictions must be considered. Note that the court did not hold that no restrictions as to time and space could be placed on the employee; only that the restrictions could not be substantial enough to prevent the employee from attending to private pursuits.

The factors to be considered in determining whether an employee is on controlled standby are similar to the federal guidelines and include:

(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 engage d in during o n-call time.

The simple requirement that the employee wear a cell phone, pager or beeper, standing alone, does not require that the employee be paid for all the hours the device is on. Additionally, the DLSE does not take the position that simply requiring the employee to respond to call backs is so inherently intrusive as to require a finding that the employee is under the control of the employer. Such factors as (1) geographical restrictions on employee's movements; (2) required response time; (3) the nature of the employment; and, (4) the extent the employer's policy would impact on personal activities during on-call time, must all be considered.

I hope that this provides you with a helpful overview of when on call time is compensable in California.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 5 years ago.
Okay that helps, but I still need clarification so let me give you a sanario. An hourly employee, who is not on call on a particular weekend, but is still expected to wear a cell phone and respond if called, travels with his family to visit family in a town 3 hours a way. At 1:30 AM the on-call employee unsuccessfully attempts to reach him and then the manager tries 2 more times to reach him after the first call. Then at 3:30 AM he realizes these calls have come and he responds. The manager the following week gives him a corrective action notice for not responding sooner. Does this seem to violate the statute you quoted?
Expert:  Patrick, Esq. replied 5 years ago.
Thank you for your followup. It's close, but I think that the facts you describe could hypothetically constitute compensable on-call time.

Specifically, the facts you describe arguably satisfy several elements of the Madera test outlined above: the employer is placing excessive geographical restrictions on employees' movements; the required response time is unduly restrictive (two hours to respond in the middle of the night); and the extent of personal activities engaged in during on-call time (can't make a visit to family in a nearby town).

It may be wise for an employee in this circumstance to discuss less restrictive on call arrangements with their employer, such as more advanced warning prior to being called in.

Again, my number one goal is that you are satisfied with my answer. If you are, I would greatly appreciate your "accept." If you still require further clarification, I am happy to continue assisting you.

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