California employers are obligated to pay the wages of an hourly employee for all time that the employee is under the control of the employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so. In Industrial Welfare Commission Orders 4 and 5, there is a modified definition of hours worked for specified occupations. (Industrial Welfare Orders, § 2)
On-call or stand by time at the work site is considered hours worked for which the employee must be compensated even if the employee does nothing but wait for something to happen.
For example, when an employee is required to remain at work to respond to emergencies or other unforeseen incidents, such time is considered work time, even if the employee is doing nothing more than waiting around for something to happen. Even when an employee leaves the employer's premises while on call, but the employee's time is restricted (such as a requirement to respond to all calls within 15 minutes) in that the employee cannot engage in personal activities, such time will generally be considered work time.
In contrast, if an employee can choose whether to respond to a call or the response requirements allow the employee to engage in personal activities and come and go as he or she pleases, such time should generally not be considered work time.
Factors That Determine On-Call Pay
Whether on-call or stand by time away from work is considered compensable must be determined by looking at the restrictions placed on the employee. A variety of factors are considered in determining whether the employer-imposed restrictions turn the on-call time into compensable hours worked. These factors were set out in a federal case, Berry v. County of Sonoma (1994) 30 F.3d 1174, and include:
- Whether a fixed time limit for response is unduly restrictive.
- Whether the frequency of calls is unduly restrictive.
- Whether the on-call employee can easily trade his or her on-call responsibilities with another employee.
- Whether there are excessive geographic restrictions on the employee's movements; and
- the extent to which the employee engages in personal activities during on-call periods.
During times when the employees are subject to the employer's control, on-call or stand by time at the work site is considered hours worked, and employees must be compensated for this time even if they do nothing.
Recovering On Call Wages
Employers may set a different rate of pay (e.g., minimum wage) for time when the employee is waiting around for an emergency call or a call to respond to an unforeseen circumstance. For guidance in this area, or for questions related to any of California's wage and hour laws, don't hesitate to contact Kingsley and Kingsley to speak with one of our experienced labor lawyers.