Written by Galen T. Shimoda, Justin P. Rodriguez, and Cassandra D. Shaft
Many workers in California, such as tow truck drivers, maintenance men/women, and computer technical support persons, have additional “on-call” shifts that they work beyond their regularly scheduled eight-hour day. On the one hand, many employers choose to compensate both the time employees spend on “standby” and the time employees spend actively responding to a call during the on-call shifts. On the other hand, other employers only compensate for the time employees spend actively responding. A question often raised is whether these employees are also entitled to be paid for the time spent on standby.
California courts generally use four general factors in determining whether standby time is compensable. These four factors are 1) the frequency of calls an employee is required to respond to during the on-call shift, 2) the typical duration of each call responded to during the on-call shift, 3) whether the employee is required to respond to calls during the on-call shift, and 4) whether there are other relevant restrictions, e.g. response times, geographic, and/or appearance related, placed on employees during the on-call shift. A court will use these factors and the surrounding circumstances to determine whether the restrictions on an employee’s time are primarily for the employer’s benefit and whether the restrictions limit the employee’s time such that he or she is not able to sufficiently engage in private pursuits during the on-call, standby period. If the answer to both is yes, then the standby time is compensable.
There is no hard-and-fast rule that will apply in all cases. Rather, a court will look at the specific facts of each case and then balance the factors. This can mean that a lack in one factor could be compensated by a surplus in another factor. For example, if an employee may only respond to one call during an on-call shift, but each call takes approximately four to six hours to resolve, then standby time spent during an on-call period may be compensable. Another example is if an employee is called three to six times every on-call shift, but each call takes approximately twenty minutes to respond; this still may be compensable standby time even though the duration of each call is much lower than the first example. In contrast, if an employee only has an average of one to two calls a month, then a court may find this is not enough to establish the standby time as compensable. Courts also consider whether an employee can easily pass on the obligation to respond to a co-worker: the easier it is, the less impactful call frequency and duration are to the analysis, but the more difficult it is, the more impactful call frequency and duration are.
Sometimes, employers place restrictions on employees when they work their on-call shifts. A common restriction relates to geographic limitations, such as being required to live on the work premises or being required to arrive on site within a short period of time. An example would be a factory mechanic who has to be able to return to work within ten minutes of receiving a call. A court may find that this requirement limits so much of the mechanics ability to participate in their private pursuits; thus, the on-call time must be paid. Compare this to the situation mentioned above, where a worker could simply respond to a page and call in to work from wherever they are to address the issue – the restrictions on this employee’s ability to engage in private pursuits are significantly less. Examples of other restrictions include the requirement to wear a uniform, to use an employer vehicle, and to carry tools or other equipment at all times.
Again, there is no hard-and-fast rule that can guarantee an employee compensability of standby time. However, the factors mentioned above offer a good starting point for determining whether an employee should be paid for time spent being on-call.
If you believe that you have claims for unpaid wages, including for time spent on-call, please contact our office.