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On-Call and Stand-By Pay
If you require an employee to stay at home or at work on an on-call or standby status, that time may qualify as hours worked, depending on how much you restrict his/her ability to actually have free time. Hours worked is defined as "the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether required to do so or not."
Under California law, if the employee is under your control, it is likely that you will have to pay him/her even if the employee is just sitting around waiting for something to happen. On-call time is not compensable if the employee can use the time spent on-call primarily for his/her own benefit.
Courts typically consider the following in looking at whether on-call time should be paid:
Agreements between you and your employee that the on-call time is noncompensable do not hold up against state requirements.
Carrying a cell phone or similar device does not usually constitute hours worked, if the employee is free to come and go as he/she pleases. You must give the employee sufficient time to report so that he/she can be free to use the off duty time to his/her own benefit. Sufficient time to report is generally at least 20 to 30 minutes, depending on geographic population density.
All time spent on call-backs during a standby period is counted as time worked. Time worked includes a reasonable time for travel both to and from the worksite from the point at which the employee is summoned to return to work. Use good judgment and be reasonable when you determine travel time. For example, consider an employee who lives three miles from the worksite. However, when you call him to return to work at 12:00 p.m., he is at the beach 20 miles away. The employee returns and works until 9:00 p.m. In this case, the travel time would be calculated from the beach to the worksite and back to the employee’s home.
You must pay call-back or controlled standby time the same as regular hours worked. You must pay the regular or agreed wage for this period as well as applicable overtime.
Under California law, if the employee is under your control, it is likely that you will have to pay him/her even if the employee is just sitting around waiting for something to happen. On-call time is not compensable if the employee can use the time spent on-call primarily for his/her own benefit.
Courts typically consider the following in looking at whether on-call time should be paid:
- Are there excessive geographic restrictions on the employee’s movements?
- Is the frequency of calls unduly restrictive?
- Is there a fixed time limit for the employee to respond to the call that is unduly restrictive?
- Can the on-call employee easily trade his/her on-call responsibilities with another employee?
- Can the employee engage in personal activities during on-call periods? If so, to what extent?
- What is the nature of the employment relationship and the industry practice?
- Are there any other limitations on the employee’s ability to use the time for his/her own benefit?
Agreements between you and your employee that the on-call time is noncompensable do not hold up against state requirements.
Carrying a cell phone or similar device does not usually constitute hours worked, if the employee is free to come and go as he/she pleases. You must give the employee sufficient time to report so that he/she can be free to use the off duty time to his/her own benefit. Sufficient time to report is generally at least 20 to 30 minutes, depending on geographic population density.
All time spent on call-backs during a standby period is counted as time worked. Time worked includes a reasonable time for travel both to and from the worksite from the point at which the employee is summoned to return to work. Use good judgment and be reasonable when you determine travel time. For example, consider an employee who lives three miles from the worksite. However, when you call him to return to work at 12:00 p.m., he is at the beach 20 miles away. The employee returns and works until 9:00 p.m. In this case, the travel time would be calculated from the beach to the worksite and back to the employee’s home.
You must pay call-back or controlled standby time the same as regular hours worked. You must pay the regular or agreed wage for this period as well as applicable overtime.
On-Call Resident Employees. Some businesses have employees who stay overnight on the premises,
such as security guards or apartment managers.Certain Wage Orders have specific rules, and you should always refer to the Wage Order that covers your particular business. For instance, on-call resident employees, such as resident managers, under Wage Order 5, Public Housekeeping Industry, need only be paid for time spent performing their assigned job duties. Under Wage Order 5, you are not required to pay on-call resident employees for the time they spend on-call if they can freely engage in personal activities, regardless of any geographic restrictions you impose on these activities.
For most purposes, however, the rules regarding on-call pay for employees who stay overnight on the employer's premises are the same as for other on-call employees. Whether the employee should be paid depends on how much control you exert over the employee's activities. Employees should be paid for on-call time when they cannot leave the premises and are significantly restricted from engaging in non-work, personal activities.
For on-call duty of 24 hours or more, sleep time can be excluded from compensation when all of the following conditions are met:
For most purposes, however, the rules regarding on-call pay for employees who stay overnight on the employer's premises are the same as for other on-call employees. Whether the employee should be paid depends on how much control you exert over the employee's activities. Employees should be paid for on-call time when they cannot leave the premises and are significantly restricted from engaging in non-work, personal activities.
For on-call duty of 24 hours or more, sleep time can be excluded from compensation when all of the following conditions are met:
- The sleep time is uninterrupted;
- A comfortable place to sleep is provided; and
- The parties enter into an agreement specifically excluding the sleeping period from compensation.