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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 criteria 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 New Hampshire Department of Labor
, who will investigate and order your employer to pay back pay if they find cause. See here for the complaint form: http://www.nh.gov/labor/documents/wage-claim.pdf
Your employer will be legally prohibited from retaliating against you as a consequence of you attempting to enforce your right to 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.
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