Should non-exempt employees in California receive compensation for being on call? The answer to this question depends on how the on-call employee is spending his or her time while on-call for the employer.
According to the law:
“On-call waiting time may be compensable if it is spent primarily for the benefit of the employer and its business.” Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 523.
“A determination of whether the on-call waiting time is spent predominantly for the employer’s benefit depends on two considerations: (1) the parties’ agreement, and (2) the degree to which the employee is free to engage in personal activities.” Gomez v. Lincare, Inc. (2009) 173 Cal.App.4th 508, 523.
What Defines the “Waiting Time?”
In today’s day and age, employers and employees rarely enter into formal employment agreements, much less ones which spell out in detail how an employee is to spend his or her time while on call. Therefore, in many cases, it is important to examine the degree to which the employee is free to engage in personal activities. To do this, the answers to the following questions should be considered:
- Is the employee subject to any on-premises living requirement?
- Is the employee subject to any geographical restrictions which limit his or her movements?
- How frequently does the employee get calls while on-call, and is this unduly restrictive for the employee?
- Is there a fixed time within which the employee is required to respond, and is this unduly restrictive for the employee?
- Can the on-call employee easily trade on-call responsibilities?
- Can the use of a pager ease the restrictions on the employee?
- Is the employee actually engaged in personal activities during the call-in time?
Owens v. Local No. 169, Ass’n of Western Pulp and Paper Workers (9th Cir. 1992) 971 F.2d 347.
Get Advice from an Attorney
Of course, the answer to any single question listed above is not dispositive. For advice, those working in Southern California (https://goo.gl/) can contact Akopyan Law Firm A.P.C. to talk to an experienced attorney that practices employment law. We offer a complimentary case evaluation and contingency fee services. Our case results and testimonials speak to our expertise.