Posted: 9/15/2016 7:21:01 PM EDT
| Can your company expect you to be "on call" but not pay you for being on call? If we get called out we get time to and from including on the job. Usually a decent company will compensate you hourly(something like 80 cents/hr) for every hour you're on call on top of any hours accrued while on call. |
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C. Waiting or On-Call Time
Employees who are temporarily idle while waiting for further work in such a way that they are not able to use the time effectively for their own purposes must still be regarded as working, according to 29 C.F.R. 785.15. The DOL's position regarding "on call" time is found in 29 C.F.R. 785.16 and 785.17. In deciding whether time spent "on call" is compensable, DOL and the courts have traditionally used one variation or another of the test of whether an employee is "waiting to be engaged" (non-compensable time) or is "engaged to be waiting" (compensable time) (Skidmore v. Swift, 323 U.S. 134 (1944)). The Fifth Circuit adopted a fairly strict standard for determining whether on-call time is payable in the 1991 case of Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671, cert. denied, 112 S.Ct. 882. This case involved a biomedical (life-support) equipment repair technician who was so indispensable to the employer's operation that he was on call 24 hours a day, 365 days a year. The employee was required at all times to wear a beeper, restrict his alcohol consumption, and be able to come to his workplace within 20 to 30 minutes of being "beeped". After more than eleven months of such duty, the employee separated from employment with the medical center and claimed the employer owed him overtime pay for all the time he spent on call. Noting that Bright admitted he was called in only four or five times each week, was paid for all time spent in responding to the calls, and was able at all non-duty times to conduct his personal affairs, including sleeping or resting at home, going shopping, watching television or movies, and going to restaurants, the Court declined to consider the on-call, off-duty time "hours worked" for overtime pay purposes. The Fifth Circuit ruled that the critical question is "whether the employee can use the on-call time effectively for his or her own purposes". Interestingly, this case is cited with approval in many similar decisions by circuits around the country, even by courts that acknowledge, as the Bright court did, that the on-call policy in question seemed "oppressive"; for example, see Martin v. Ohio Turnpike Commission, 968 F.2d 606, 609 (6th Cir. 1992); Berry v. County of Sonoma, 30 F.3d 1174, 1183 (9th Cir. 1994); and Birdwell v. City of Gadsden, Alabama, 970 F.2d 802, 808, 809 (11th Cir. 1992). DOL cited the Bright case in an opinion letter dated August 12, 1997 (1997 WL 998028 (DOL WAGE-HOUR)). It is permissible to have a wage agreement whereby employees are paid at a lower rate (at least minimum wage) for compensable on-call time and other types of non-productive work time, as noted in 29 C.F.R. 778.318(b). However, any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time so distinguished must be carefully and exactly recorded. Further, if such work results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay, as provided in wh_part778.html#778_115 (see the topic "Employees Working at Two or More Rates" in the article "Calculating Overtime Pay" in this book). Due to the complexity of the overtime calculation method necessary and the recordkeeping involved, any company attempting this should have the agreement prepared with the assistance of an attorney experienced in this area of the law. |
well, if it makes you feel any better, I am on call... 24/7/365 
I get 20 or so calls a day... 18 of them are the " I cant find my keys" type of call. Two of them are, the key wont turn, and one or two are "where do the keys go?". Today: I got 37 emails 6 voicemails one face to face meeting with a client in Houston Rode the bike down there last night, stayed in a motel, and rode back today. I stopped every 80 -100 miles to answer the f'n phone. Got home, ordered $9000 in product, two salesman called to ask me about Truckin'....and I am the damned Tech. not sales...... 
I cant really complain, I did get this list of goodies out of my bonus this quarter. Schuberth Helmet $500 Italian loafers ( Sidi ADV GoreTex boots  )
New Rain gear Kimber Ultra Carry II M&P 15-22 Mossy 930 RAR .308 New tires for EL Tigre Crash bars and that put a good dent in the bonus funds. 
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| We used to have to be on call on weekends for one account, fortunately they decided it wasnt worth the expense after awhile. Someone is only on call for holidays now. Basically on top of your holiday pay, you get 4 hours of on call pay per day, but if you actually have to roll your van for an emergency service call or priority account, you only get the actual hours worked if it is more than 4 hours. We have the same people that volunteer for on call all the time so no one gets forced to do it. |
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Thanks. The hard part is getting the company to pay us without getting fired.  Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity |
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This is very hard to prove in Texas due to the fact we are a at will state! A company does not have to give a reason to let you go. Now if you work for the state that is a different story they do things all messed up.
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Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity Quoted:
Quoted:
Thanks. The hard part is getting the company to pay us without getting fired. Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity |
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Quoted:
This is very hard to prove in Texas due to the fact we are a at will state! A company does not have to give a reason to let you go. Now if you work for the state that is a different story they do things all messed up. Quoted:
This is very hard to prove in Texas due to the fact we are a at will state! A company does not have to give a reason to let you go. Now if you work for the state that is a different story they do things all messed up. Quoted:
Quoted:
Thanks. The hard part is getting the company to pay us without getting fired. Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity Yep, they will make up a reason or give none at all. Being the squeaky wheel is never usually not a good idea. ETA: I've done it before when I felt a company was crossing the line or I just plain got tired of their bullshit. But I was also prepared to loose my job. |
| I had an employer that did not tell me about the on-call expectation when I was hired. I simply crossed my name off of the on-call chart, and left the on-call pager in the basket. It caused quite a stir with all of the other techs and management. They paid some ridiculous flat rate to stay on call from 4 pm to 7 am. I told them I would do it for full pay at overtime if applicable. There were very few nights that the on-call techs did not have to make a run or two. That and several other outright lies made for a short time at that place. What sucks is that I had turned down 2 other jobs that would have worked out just fine. |
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Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity Quoted:
Quoted:
Thanks. The hard part is getting the company to pay us without getting fired. Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity Retaliation is hard to prove. Unless a company is stupid enough to shoot themselves in the foot, they'll find some other excuse (they don't need a reason) to sack someone who asks inconvenient questions that sound like someone may be looking to start trouble... |
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Some of y'all could never work for yourselves. 16-18 hour days 6 or 7 days a week and no guarantee that you'll have paying customers. Maybe y'all should be thankful you have a fucking job that you don't have to do all the work. If you're doing all that there must be some up side to it. If not, then only an idiot would work like that without appropriate compensation. There is a reason why the majority of small start up businesses fail within their first 2 years. Most people can't do that without burning out even if they are profitable. And most start ups don't make any money for quite a while after opening their doors. |
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Some of y'all could never work for yourselves. 16-18 hour days 6 or 7 days a week and no guarantee that you'll have paying customers. Maybe y'all should be thankful you have a fucking job that you don't have to do all the work. I am self employed now. I work 40 hours or so. 6x18 hours would probably kill me (for real). I would be more than a little bitter. Get some help and enjoy yourself a little. |
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Retaliation is hard to prove. Unless a company is stupid enough to shoot themselves in the foot, they'll find some other excuse (they don't need a reason) to sack someone who asks inconvenient questions that sound like someone may be looking to start trouble... Quoted:
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Thanks. The hard part is getting the company to pay us without getting fired. Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity Retaliation is hard to prove. Unless a company is stupid enough to shoot themselves in the foot, they'll find some other excuse (they don't need a reason) to sack someone who asks inconvenient questions that sound like someone may be looking to start trouble... Texas is an at will state, but there are caveats. Having sat on the employer side through some of these the onus is generally on the employer to prove that it didn't happen. Not going to play the "what if" game here, just understand that employees usually get the benefit if the doubt. |
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Quoted: Some of y'all could never work for yourselves. 16-18 hour days 6 or 7 days a week and no guarantee that you'll have paying customers. Maybe y'all should be thankful you have a fucking job that you don't have to do all the work. I used to work for an oilfield supply company. We only handled the production side of the oilfield. Too small to service rigs. On call wasn't so bad for us. The only time you would probably get called out is right after closing hours. Every now and then a rig would call to order bullshit. I would tell them I can't help them and gave them the number to our other stores who can. Of course the company man throws a temper tantrum. Once my boss helped a local rig get some lumber to get a few more dollars in sales. Just so happen that was my week to be on call. 1AM in the fucking morning on a Saturday, they call.me needing more lumber, rags, toilet paper, pens, towels, soap etc.... Where the fucking am I supposed to get lumber at 1 in the fucking morning??? Told them I would get it first thing in the morning. They complained a bit....but it's all I could do. Monday morning came around and my boss told.me I shouldn't have serviced them.....very confusing for me when we service someone and then not told we shouldn't. I was eventually laid off from that company probably for working too much. Boss would tell me that I would have to take a mandatory lunch break and clock out for at least an hour. But would send me on the road going back and forth from store to location all day long forcing me to eat lunch in the middle of deliveries. And them because everyone is a manager and/or a woman in an office setting, I would be on call most of the time forcing me to tack on more hours to my time sheet. As for employees went, there were: Branch manager Operation manager Warehouse manager Inside sales manager Outside sales manager Safety manager Warehouseman/delivery driver (me) Warehouse man/delivery driver with CDL And sometimes another warehouse man/delivery driver And there managers didn't to a damn thing outside their computer. Although, there was one foreman at a Amine plant who didn't know what he needed. Sent me on a back and forth trip to get parts from 7AM Saturday morning to 1 am Monday morning non stop (LITERALLY) because he kept ordering the wrong size parts, wrong sch parts, etc. Little onesie and twosie shit. And it was a 45 minute from store to location, and at the time, I lived only a few miles from the location...and would coincidentally call me to reorder a part as soon as I pulled into my driveway...meaning a 45 minute to the store, and 45 minute back to the location. |
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Texas is an at will state, but there are caveats. Having sat on the employer side through some of these the onus is generally on the employer to prove that it didn't happen. Not going to play the "what if" game here, just understand that employees usually get the benefit if the doubt. Quoted:
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Thanks. The hard part is getting the company to pay us without getting fired. Most likely not. It all has to do with whether your time is yours to do with as you please - or not. You cannot be fired for asking questions about what is lawfully owed to you. That is called retaliation and is very expensive for the company. ETA - clarity Retaliation is hard to prove. Unless a company is stupid enough to shoot themselves in the foot, they'll find some other excuse (they don't need a reason) to sack someone who asks inconvenient questions that sound like someone may be looking to start trouble... Texas is an at will state, but there are caveats. Having sat on the employer side through some of these the onus is generally on the employer to prove that it didn't happen. Not going to play the "what if" game here, just understand that employees usually get the benefit if the doubt. We have never had a successful unemployment claim. We do business by the book. Where employers get in trouble, is firing somebody for saying they "have a bad attitude", or not have proof of insubordination, harassment, bullying. That can cost you money. If you don't fire the problem, other employees tend to follow in their example. Three strikes and you are.OUT. Cameras with audio recording full time go a long way towards keeping everybody acting right. Myself included. Theft is a three strike offense. Theft of time is a three strike offense. |