California Employment Law

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California Employment Law

Should I get on call pay? I am the only nurse in my nursing

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home that is on call...
Should I get on call pay? I am the only nurse in my nursing home that is on call. It is 24/7 when I am not at work. I receive countless phone calls and texts about work related issued. I have to drop what I am doing and go to work if we are not adequately staffed. There have been more than a few occasions that I had left work at 5pm and had to go right back at 7pm and work the entire night. I am the adon, lpn. Paid at hourly rate. The don refused to take call or go in and cover floor. What are my chances at getting back pay for on call?
Submitted: 2 years ago.Category: California Employment Law
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5/7/2015
California Employment Lawyer: Patrick, Esq., Lawyer replied 2 years ago
Patrick, Esq.
Category: California Employment Law
Satisfied Customers: 13,405
Experience: Significant experience in all areas of employment law.
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Good evening 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 crieria 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 Department of Labor, who will investigate and order your employer to pay back pay if they find cause. See here to get the complaint process started: http://www.dol.gov/wecanhelp/howtofilecomplaint.htm
Your employer will be legally prohibited from retaliating against you as a consequence of you atttempting to enforce your right ot 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.
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Patrick, Esq.
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Category: California Employment Law
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