I don’t think it’s much of a stretch to say that most people agree that you should be paid for the hours you work, right? But what about the hours you are not actually working?
Many people have jobs that include on call hours, such as first responders, apartment complex maintenance employees, IT workers, salespeople, and nurses, which means they are available to work during those hours, though they might not necessarily be on premise. If you are on call, you are supposed to be accessible if your employer “calls” you. Employers usually use on call, or standby, scheduling to try to ensure coverage of a particular skill or service.
For the purpose of this article, I am going to answer some of the most common questions I hear about NC labor laws for on call employees. I will focus on on call pay for non-exempt employees, those employees who are entitled to (or not exempt from) the Fair Labor Standards Act (FLSA) minimum wage and overtime pay protections. But be careful, just because your employer says you are exempt or an independent contractor, it does not necessarily mean you are. You deserve to get paid for all the hours you work even if your employer misclassifies you.
What Does the FLSA Say About Being On Call?
According to FLSA regulations (29 Code of Federal Regulations 785.17), “An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while on call.” That employee is generally entitled to compensation for those hours that he was on call.
The Fair Labor Standards Act on call employee regulations also say that an “employee who is not required to remain on the employer’s premises, but is merely required to leave word at his home or with company officials where he may be reached, is not working while on call.” And that employee is usually not paid for those on call hours.
Now let’s take a deeper dive into questions about labor law for on call employees, compensation, and on call work.
Do You Get Paid for Being On Call?
On call pay requirements depend on if you are considered to be on duty or off duty during this time. The general rule of thumb set out by the FLSA is that employees who are “engaged to wait,” or on duty, get paid, and employees who are “waiting to be engaged,” or off duty, do not get paid. Often, this is decided on a case-by-case basis.
But what exactly does this mean? Let me provide some examples. If your employer requires that you remain on-site while on call, or so close that you cannot use the time effectively for your own purposes, you are usually considered to be “engaged to wait,” or on duty, and should be paid accordingly.
The FLSA offers the following examples of workers who are likely to be considered “engaged to wait:”
- A stenographer reading a book while waiting for dictation
- A messenger working a crossword puzzle while waiting on his next assignment
- A firefighter playing checkers while waiting on alarms
- A factory worker talking to coworkers while waiting on machinery to be repaired
If your employer allows you to be on call at home or to leave a message where you can be reached, you are generally considered to be “waiting to be engaged,” or off duty, and will not be paid in most cases. As an example, the FLSA claims that a truck driver is “waiting to be engaged” when he is relieved of any responsibility for the six-hour interval between arrival at one destination and the return trip. He will usually not be paid for the time between trips.
What Is Standby Pay?
If you are on call and are called in to work, standby pay laws state that you are to be paid for the hours you worked. Depending on the job, sometimes being called in does not mean you physically have to be at your place of employment.
As a general example, if you are an on call IT tech who spends time on the phone helping a co-worker trouble-shoot a company computer problem, you are working, and you should be paid. If your employer denies you wages for this, you may be being taken advantage of, and we can help you fight back.
Are There Situations Where I Might Get Paid While On Call But Off Duty?
Sometimes, off premise employees can be entitled to compensation for their on call time, even when they are off duty, if their employers have put additional constraints on their freedom.
Here are some of the questions I ask my clients when they tell me that they feel that they should be paid for their on call time away for the worksite:
|Number of calls received – Did the number of calls you received while on call disrupt your time so that you could not use that time as you wanted?|
|Distance from work allowed – Did your employer ask you to stay within a specific distance from work?|
|Response time allowed – Did your employer require that you respond immediately to each call?|
|Rules for activities – Did your employer enact strict regulations about what you could and could not do while on call that prevented you from using the time as you wanted?|
The answers to these questions may help you and your employment law attorney build a case for possible compensation for those on call, off duty hours away from your place of employment.
How Does On Call Time Work for Hourly Workers?
The FLSA requires that employers compensate the on call time for hourly workers starting with the time that they clock in and start to work, regardless of where they are working. As I mentioned above, if you are on call and required to stay at work while on call, you should likely be paid for those hours.
Tip: Some companies provide on-call pay beyond what is required by law, so be sure to check with your human resources department or supervisor about your company’s on call payment policy.
What About Overtime?
If you are an hourly North Carolina worker and were on duty during your on call time, your employer is required to pay the overtime rate (time and a half) for any hours worked over 40 hours. The misclassification of employees – treating them as independent contractors instead of employees – is becoming more common in today’s workplace.
In a 2017 Harvard Business Review article, David Weil, the Administrator of the Wage and Hour Division of the U.S. Department of Labor from 2014-2017, reported seeing this practice spread quickly across sectors like restaurants, residential construction, and trucking and logistics. But this issue is not limited to these industries.
Weil wrote in the same article, “Week after week, it seemed, I was witness to an investigation from our district offices involving the incorrect classification of all types of workers: janitors, home health aides, drywall workers, cable installers, cooks, port truck drivers, and loading dock workers in distribution centers.”
Can an Employer Force Me to Be on Call?
An employer generally has the right to require you to be on call. There are no wage and hour laws that limit the amount of hours a person 18 years of age or older can work, and your employer is free to adjust your hours whether you agree or not.
As you can see, there are many different variables to consider when trying to determine if you are being compensated fairly by your employer for your on call work. I know it may seem daunting at times, but I cannot emphasize enough how important it is to stand up for your rights. It can be very helpful if you take contemporaneous notes about dates, when you had to answer a call, how long it was, and what personal activities you could and could not do because of the on call work. I also strongly encourage you to seek the counsel of an experienced attorney if you feel your employer has violated your rights.
There are many ways an employment law attorney can help you, and it doesn’t have to be cost prohibitive to get this help. Our firm operates on a contingency fee basis; if we win, we collect a percentage of the total amount we recover for you, instead of charging you up-front costs or hourly fees.2 That’s right, you pay nothing out of your pocket up front. And you can request a free case evaluation online 24/7.
Oftentimes, employers with resources and power can seem intimidating. But you don’t have to fight this fight alone. The employment law team here at the Law Offices of James Scott Farrin is dedicated to helping workers protect their rights. I have been advocating for workers for years, and I am here to help. Call us at 1-866-900-7078 for a free case evaluation. Together, we can tell your employer you mean business.