On Call Pay and Related Questions
Some employees may not be needed to stay in a certain place only, but can move around and carry on with their normal life. Such employees may find it difficult to receive on call pay. On few occasions it would be necessary for the employee to remain at a certain location during the on call period. An employee may be de-motivated if he/she gets to know that there would be no pay for working on call and this would lead to concerns regarding on call pay and laws relating to it. Below are a few questions that have been answered regarding on call pay:
What is the pay that an employee is eligible for being on call after hours? Is it the standard hourly or salaried rate or would it be a reduced on call rate?
Payment for an on call employee would depend on the amount of restrictions that would be put on an employee on call. If the employee is restricted from going out of office and needs to be on the computer, if the employee is required to be at home with restrictions on consuming alcohol, etc. would mean more limitations. This would lead to the employee being paid more or at least the minimum wage for each hour on call and any overtime hours accordingly. However, the employee may not be paid anything if the on call duty would necessitate the employee to only answer questions through cell phone.
Can the employer ask the employee to go on a day off during the pay period as compensation for not paying on call pay?
It is at the employer's discretion to allow an employee to go on an extra day off for performing on call duties or not to. It is not necessary for an employer to give such benefits; more so in cases where the employees are at-will employees. As per the Fair Labor Standards Act, the restrictions or limitations set by the employer would determine the payment for on call duties. An employee would need to be paid for the hours of work performed if the employee's movement is restricted to one place (like office while on call). However, if there is no restriction on movement except that the employee needs to be available to be reached by phone; then no payment needs to be made. There are instances where courts have considered restrictions as minor if an employee is required to abstain from consuming alcohol for a set period while responding to a call. This would mean that the employer is not required to pay for on call duties.
Is it considered lawful to have an on call employee in front of the computer at all times?
It would be irrational for an employer to have an employee in front of the computer for long periods of time. However, in the event that such an arrangement is necessary, then the employer should pay the employee on call pay. One may file a petition in the court in the event that the employer denies paying on call pay in such a situation. One may want to hire the services of an employment lawyer to ascertain one's rights in this scenario.
Is it legal for an employer to ask an employee to be on call for the entire weekend without on call pay?
In the absence of restrictions on movement, an employee may not be eligible for on call pay. This would mainly be because of the invasion of cell phones which give freedom to employees to move around freely without needing to stay put near a conventional land line phone. However, if the on call duty needs an employee to be restricted to one location during the on call period, then the employee usually gets paid. On the other hand if the restrictions are minimal, then one would not need to be paid on call pay. For instance, if an employee is needed to answer a call within a set amount of time or to abstain from alcohol during on call time.
If an employee denies being on call without pay, is it possible for an employer to withhold vacation pay or wages?
In the event that an employee is not severely restricted to move around; the employee may be put on call duty without pay. Proving in court that one was restricted in movement is difficult as almost all of them either have cell phones or beepers. Unless there is an employment agreement that restricts the employer from touching the vacation time; the employer may take away the vacation time for not taking up on call duties. However, the wages should not be withheld as per the Fair Labor Standards Act as this is something that one has already worked for. If the wages are being withheld, then one may file a complaint with the state department of labor or the US Department of labor.
Issues crop up when employees are not paid for on call duty. This would lead them to search for answers regarding their rights and provisions of on call pay laws. It would be in one's best interest to ask an employment lawyer to answer your legal questions.
What is the pay that an employee is eligible for being on call after hours? Is it the standard hourly or salaried rate or would it be a reduced on call rate?
Payment for an on call employee would depend on the amount of restrictions that would be put on an employee on call. If the employee is restricted from going out of office and needs to be on the computer, if the employee is required to be at home with restrictions on consuming alcohol, etc. would mean more limitations. This would lead to the employee being paid more or at least the minimum wage for each hour on call and any overtime hours accordingly. However, the employee may not be paid anything if the on call duty would necessitate the employee to only answer questions through cell phone.
Can the employer ask the employee to go on a day off during the pay period as compensation for not paying on call pay?
It is at the employer's discretion to allow an employee to go on an extra day off for performing on call duties or not to. It is not necessary for an employer to give such benefits; more so in cases where the employees are at-will employees. As per the Fair Labor Standards Act, the restrictions or limitations set by the employer would determine the payment for on call duties. An employee would need to be paid for the hours of work performed if the employee's movement is restricted to one place (like office while on call). However, if there is no restriction on movement except that the employee needs to be available to be reached by phone; then no payment needs to be made. There are instances where courts have considered restrictions as minor if an employee is required to abstain from consuming alcohol for a set period while responding to a call. This would mean that the employer is not required to pay for on call duties.
Is it considered lawful to have an on call employee in front of the computer at all times?
It would be irrational for an employer to have an employee in front of the computer for long periods of time. However, in the event that such an arrangement is necessary, then the employer should pay the employee on call pay. One may file a petition in the court in the event that the employer denies paying on call pay in such a situation. One may want to hire the services of an employment lawyer to ascertain one's rights in this scenario.
Is it legal for an employer to ask an employee to be on call for the entire weekend without on call pay?
In the absence of restrictions on movement, an employee may not be eligible for on call pay. This would mainly be because of the invasion of cell phones which give freedom to employees to move around freely without needing to stay put near a conventional land line phone. However, if the on call duty needs an employee to be restricted to one location during the on call period, then the employee usually gets paid. On the other hand if the restrictions are minimal, then one would not need to be paid on call pay. For instance, if an employee is needed to answer a call within a set amount of time or to abstain from alcohol during on call time.
If an employee denies being on call without pay, is it possible for an employer to withhold vacation pay or wages?
In the event that an employee is not severely restricted to move around; the employee may be put on call duty without pay. Proving in court that one was restricted in movement is difficult as almost all of them either have cell phones or beepers. Unless there is an employment agreement that restricts the employer from touching the vacation time; the employer may take away the vacation time for not taking up on call duties. However, the wages should not be withheld as per the Fair Labor Standards Act as this is something that one has already worked for. If the wages are being withheld, then one may file a complaint with the state department of labor or the US Department of labor.
Issues crop up when employees are not paid for on call duty. This would lead them to search for answers regarding their rights and provisions of on call pay laws. It would be in one's best interest to ask an employment lawyer to answer your legal questions.
Source...