Call on Me: Properly Compensating the On-Call Employee
While firefighters and plumbers have long been used to it, more and more office employees are being required to be remain “on-call” outside normal work hours in order to accommodate the business needs of their employer. It may be an IT employee who is asked to remain on call to offer help to any executive who is unable to log-in at his or her home over the weekend, an administrative professional who is asked to standby in case a lawyer needs help with an emergency motion, or an in-house travel assistant who is asked to remain available to resolve an employee’s unanticipated flight cancelations.
While everyone knows that non-exempt employees should always be paid for any time they actually work, does an employer have to pay non-exempt employees for the time that they spend waiting for a call? As a general rule, an employer does not have to pay non-exempt employees for non-working on-call time if the employee is not required to remain at the workplace.
However, there are situations where an employer could become liable for not paying the employee for the time they spent waiting on a call. In evaluating these cases, courts have looked at many factors. For example, how many calls does an employee typically get while on-call? The more calls an employee has to respond to during an on-call time period, the more likely the employee will be entitled to pay. How long does an employee have to respond to calls? If the employer requires an employee to immediately respond after being paged, the employee may have a better argument for being paid. How easy is it for an employee to trade off on-call responsibilities with others? The more flexible an employer is, the less likely the employer will have to pay for on-call time. And finally, how easy is it for an employee to engage in personal activities during the on-call time? The less freedom employees retain to spend their on-call time as they see fit, the more likely it is that the employer will need to pay for that time.
If an employer relies on on-call workers who are only paid when they are actually working, it’s a good idea to continually monitor the demand for those employees’ services. If you notice there is a particular weekend or evening where the employee was especially busy, consider paying the employee for some –or all– of the time that the employee spent waiting. Additionally, employers should consider paying employees a minimum amount for the time they spent working. Paying employees for a minimum of one hour’s work, including in cases where employees only spend ten minutes or less on a single call, will incentivize those employees to volunteer to do on-call work. Finally, don’t place the burden of on-call work exclusively on your non-exempt staff. If you are the manager of an IT department, for example, it will help morale if you occasionally volunteer to be the on-call person, even though you are exempt and won’t get any additional pay.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.