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On-Call Disputes Create Litigation Dangers

September 13, 2009
Related Topics: Technology and the Law, Labor Relations, Wages and Hours, Featured Article, Technology
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Are BlackBerrys, cell phones and pagers a source of freedom and flexibility for employees or are they electronic leashes that keep them tied to work—sometimes without being paid for it? The questions are not just philosophical ones. Many employers are learning that the wrong answer could be costly.

The frequency of wage-and-hour lawsuits, especially collective actions, keeps growing. And so does a new battleground in that war. Although many employers provide some sort of compensation for time spent on call, the Fair Labor Standards Act does not require that nonexempt employees receive any such compensation—as long as they remain generally free to engage in personal endeavors.

But some employees are claiming that their on-call assignment is so restrictive that they should be considered “on duty” and therefore be entitled to their hourly wage (including overtime pay). In the health care industry, where workers are regularly on call, this can be an especially troublesome dilemma.

Familiar scenarios, new focus
On-call schedules and beepers are nothing new in the world of health care, which has relied on these tools for many years. What is new, however, is the effort that plaintiffs’ lawyers are devoting to generating litigation in this area. Some are using slick Web sites to recruit clients for free consultations. That’s why it is so important to monitor your facility’s policies and practices. You want to root out problems before they mushroom.

The particular facts and devices may vary, but the question comes down to whether nonexempt employees are so restricted by on-call duties that they are effectively working extra hours without pay. Examples of such disputes lawsuits abound.

This year, a maintenance worker in Wisconsin claimed unpaid wages for time spent receiving and responding to messages while away from work. He received the messages on his employer-issued Blackberry, pager and cell phone. He was allegedly required to respond within 15 minutes.

In California, medical equipment service reps claimed they should be paid for on-call time because it interfered with their time off. Among other things, they had to respond to customer inquiries within 30 minutes, respond to service calls within two hours, and were not permitted to drink alcohol while on call. The employees were allegedly instructed not to record any time for patient calls that could be resolved by telephone.

In another lawsuit, plaintiffs alleged that their employer required them to be on call during meal breaks, stay on the premises, in uniform and be immediately available for work. This scenario is all too familiar for hospitals and clinics.

Protecting your organization
In the face of this new scrutiny of on-call time, you can safeguard your facility by reviewing your policies. If you do not have a policy regarding on-call work, consider developing one. An effective policy will not be so restrictive that employees have little freedom to use their time off for personal endeavors. Here are some areas in which to exercise care:

Overly restrictive geographic limitations: Requiring employees to be within a one-hour drive is probably not overly restrictive. Requiring employees to remain within a five-minute drive from the work site, or requiring them to remain on the work site, probably is. If you impose that kind of tight geographical limit, the on-call time would likely be considered compensable time worked.

Restrictions on movement: Such restrictions as requiring an employee to remain at home near a telephone are risky. Providing cell phones or pagers can obviously alleviate this concern.

Immediate-response requirements: Do not require an employee to return telephone calls within too short a period of time. Again, there is no bright-line rule, but requiring telephone calls to be returned within 30 minutes has been deemed to be not overly restrictive. A five-minute requirement probably would be.

Uniform requirements: If employees are required to wear a uniforms, that’s a strong indication that their off-work time is not their own.

Frequency of work-related calls: How many telephone calls or work-related interruptions does the employee experience while on call? Frequent calls or requirements to perform work-related tasks mean the employee has little freedom to enjoy off-work time and probably should be compensated for the on-call time.

Barring employees from trading on-call shifts among themselves: Rigid scheduling can create the appearance of inflexibility. Conversely, if employees can trade shifts, it indicates more employee freedom and less likelihood that the on-call duty is restrictive enough to be considered time worked.

Although this list is by no means exhaustive, you should consider these factors, at a minimum, when evaluating or developing an on-call policy.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

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