Questions about On-call Pay Laws
Can an employer withhold vacation pay or wages if you refuse to be on call without pay?An employer can put an employee on call without pay if the employee isn’t severely restricted in the ability to move about. With cell phones or beepers becoming increasingly common, the ‘restriction’ can be difficult to prove in court. As far as the vacation time goes, as long as you do not have a contract stating otherwise, an employer can possibly take away the vacation time as a punishment for not performing on call duties. However, under the Fair Labor Standards Act, your employer cannot normally withhold wages for hours already worked. If your employer is doing this, you could file a wage claim with the state Department of Labor or the US Department of Labor.
Do employees who are on call after hours receive the same hourly or salaried rate, or a reduced on call pay rate?Generally, you would pay an on call employee based on how much control you would have over that employee while on call. For instance, does the employee have to stay in the office at the computer, or does the employee have to stay at home and refrain from drinking alcohol, or does the employee actually perform any work while being on call, etc. If there are more limitations on the employee, it is generally a fair practice to pay at least minimum wage for each hour the employee is on call and pay for any overtime hours accordingly.
If you only require the employee to be available to answer questions and if that can be done by cell phone without restricting the employee’s movements or activities during the on call period, it is unlikely that you would be expected to pay anything at all except for the time that the employee is actually performing work duties during the on call time.
Is it legal for an employer to refuse on call pay but offer a day off during the pay period as compensation?This is generally up to the employer’s discretion. The employer is not required to offer such allowances to employees, especially for at will employees. Under the Fair Labor Standards Act, the payment of on call pay is based on what restrictions the employer places on the employees while being on call. Certain courts have stated that requiring an employee to refrain from alcohol and responding to a call within a set time frame are considered minor restrictions and do not require an employer to pay for the on call time.
Is it legal to require an on call employee be in front of the computer at all times?Expecting an employee to be restricted to a desk in front of a computer for long periods of time would normally be considered unreasonable. Also, if such a restriction is in place, then the employer would be expected to pay the employee for the on call time. If for some reason the employer refuses to pay the employee, this would be grounds for petitioning the court seeking on call pay. You may want to consult an attorney about your rights.
Can an employer expect an employee to be on call for an entire weekend without on call pay?Due to the efficiency of cell phones, it is hard for an employee to argue the fact that they have restrictions imposed that are severe enough to consider on call pay. If the employer expects you to remain in one area and to perform job duties during your on call period, there could be a case for call pay. However, if there are very few restrictions such as answering a call within a set amount of time or to refrain from alcohol during the on call period, these restrictions would not be enough to require on call pay.
When an employer doesn’t pay an employee on call pay, it can leave an employee wondering about their rights and the provisions of on call pay laws. Being armed with knowledge of the law is the best way to safeguard your interests and to ensure you are on the right side of the law.