Compensation for On-Call Time
Workers Entitled to Compensation for Being “On-Call”
Employers have many methods of stealing wages from their workers and even stealing their time. One example of time theft is when employers require workers to be “on-call” waiting to be activated for a shift or waiting to begin engaging in work duties. Many employers attempt to avoid paying their workers for waiting time or off-the-clock time. This can be a direct theft of wages — not paying workers their due wages — and can also implicate a worker’s right to overtime. If an employee worked 40 hours, but also spent several hours during the week being “on-call,” the employee should be paid overtime. If you think your employer has engaged in wage theft or has failed to properly pay you for “on-call time” you should consult with an experienced employee rights attorney like the ones at Herrmann Law. As we say, we are more than just a law firm for employees – we are an employees’ fiercest advocate.
Many states have specific laws that establish conditions where payment for on-call time is required. This is also true under federal labor laws and regulations. Under federal law, generally workers must be paid for all time when on duty at the employer’s place of business AND for time spent away from the employer’s place of business “… under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits …” In other words, if being “on-call” prevents an employee from engaging in his or her own “personal pursuits,” then that time is compensable work.
Legally, the question is a factual one. Courts have collected various factors that can be used to analyze whether on-call time is compensable. Examples include:
- Whether the employee is “tethered” to his or her phone
- Can the employee leave home?
- The frequency of calls from the employer
- The nature of the employer’s “on-call” policies — such as, “employee must be at work 30 minutes after being called in”
- Is the wait time primarily “beneficial” to the employer or employee?
- Whether the employee has flexibility to not respond or can “trade” with other employees
- Whether the employee was able to engage in “personal pursuits” or actually did so
- Whether being “on-call” limited certain “personal pursuits” — that is, while “on-call,” must employees remain rested, sober, clothed and/or otherwise able to go immediately to work?
A federal court case involving Uber drivers illustrates some of the legal points. See Razak v. Uber Technologies, Case No. 16-573 (US. Dist. Court E.D. Penn. 2017). The case involved whether Uber drivers were entitled to be paid for their time while being on the Uber phone app. While the court did not specifically say “yes,” the court identified several factors that suggested that Uber might be required to pay for the drivers’ waiting time. Among those factors were these:
- The drivers were “tethered” to their phones since drivers have only have 15 seconds to accept or reject a trip request from a rider
- Drivers suffer negative consequences if not focused on their phones since those who do not accept three trip requests in a row are automatically switched by Uber to offline
- Personal activities are impacted by the fact that destinations are not disclosed to the driver in advance (so the trip could be long or short) — this impacts a driver’s ability to schedule personal activities
- In certain zones, drivers must physically wait in line before being sent a trip request — a literal restriction on drivers’ physical freedoms to pursue personal activities
- Having drivers available and on-call is beneficial to Uber, part of Uber’s business model
As noted, the court made no legal or factual determination. The court sent the case to the jury, stating that a “… reasonable juror could .. find that drivers are not meaningfully in control of their time” while they are on the Uber app.
Call the Employee Rights Attorneys at Herrmann Law Today
For more information, call the Employee Rights attorneys at Herrmann Law. If you think that your employer has violated your rights as an employee, call us. We are proven, experienced, employee-focused attorneys representing workers across the United States in all types of workplace disputes. Use our Online Contact page or call us at (817) 479-9229.