Forums
Overtime question
Legal Forum
Overtime question
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
I have an employee that is non-exempt, and also works as an on-call employee.
He works 40 hour weeks, and then we pay him an additional 4 hours of pay each day that he is on-call, which is rotated
0
Cat:Topic ForumsForum:ForumId54
Cat:Topic ForumsForum:ForumId54Discussion:DiscussionId35855
Forums » Topic Forums » Legal Forum » Overtime question
|
Overtime question
posted at 5/29/2009 6:19 PM EDT
|
Posts: 6
First: 5/29/2009 Last: 5/31/2009 |
I have an employee that is non-exempt, and also works as an on-call employee.
He works 40 hour weeks, and then we pay him an additional 4 hours of pay each day that he is on-call, which is rotated bi-weekly. One week he will be on-call, the next he will not be on-call. The problem is, the period of time that he is actually on-call is an 11 hour period. But we only pay him 4 hours of pay. Is this legal? Should we be paying him for the full 11 hours? This employee has been putting that 4 hours of extra pay on everyday on his timecard for about 10 months. He's only supposed to have the extra 4 hours on every other week. He's supposed to have 80 hours worked, and 28 hours added for on-call for 1 of the 2 weeks in that pay period. he's currently putting 80 hours worked and 56 hours for on-call. Clearly twice as much as he's supposed to. My question is this. Do we have any legal grounds? Are we supposed to be paying him for 11 hours of on-call, since that is how long he is actually on-call for everynight? If that is the case, then is he technically doing anything illegal? Some advice would be good, thanks. The company is based in California, incase the laws are different. |
|
|
Overtime question
posted at 5/29/2009 6:41 PM EDT
|
|
Posts: 6
First: 5/29/2009 Last: 5/31/2009 |
Oh and, to define this person's oncall time.
We require him to be within a reasonable distance of work (within an hour, since thats how far away he lives). We also require him to not go out of town or within any great distance from work while on-call. We also require him to be available 24/7 while on-call. Any day, anytime. Since this is the case, Under the FLSA I believe this employee technically has the right to be paid for every hour that he is on-call, which is 11 hours per night. If that is the case, he has been basically putting 8 hours per night. Which is not enough. Since we require this employee to be within a close proximity of the office, and be available at all times, which means he can't go out and have drinks with friends, because we may need him to drive in at anytime. Or if he's in a movie, he must leave if called, etc. Then does that mean we don't have any legal ground to stand on, since this employee has the right to this extra pay? So I guess the question is this... Is it worth the risk bringing up his added hours on his timecard? Will it end up costing us more than it's worth? Will he win if he sues? |
|
|
Overtime question
posted at 5/29/2009 8:15 PM EDT
|
|
Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
You should check California state wage and hour laws on this one. Generally speaking, if there aren't much in the way of restrictions on how the employee spends his "on call" time, you don't have to pay for that time. |
|
|
Overtime question
posted at 5/30/2009 6:02 AM EDT
|
|
Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
On the surface it appears his "call time" does not need to be compensated and your paying the equivelant of 4 hours work is sufficient. I would agree that seeking anonymous input from the CA w&H folks would be wise. |
|
|
Overtime question
posted at 5/30/2009 9:55 AM EDT
|
|
Posts: 6
First: 5/29/2009 Last: 5/31/2009 |
Okay I'll check with W&H.
Is this timecard flasification what he is doing though? Or, since he was actually on-call for that many hours, do we have a real case? I'm trying to decide if I should terminate this employee. The amount that he has made over the course of a year is quite a bit... but if it's going to cost us more than it's worth we don't want to bother with it. I have a feeling that we don't have a solid case because we do restrict this employee while he is oncall. He cannot go out of town, or within a great distance of work. The FLSA plain as days says On-call time must be paid if there are restrictions put on the employee while on-call... such as staying within a short distance of work, or not being able to essentially do what he wants while on-call. He can't go to any event, like a concert or sports event because if he gets called he MUST leave. We require it of him. Therefore, during the week that he is on-call, he pretty much stays home. Most problems that he gets called on he can fix remotely from home, but it still doesn't take away from the fact that we require him to be available at all times. |
|
|
Overtime question
posted at 5/30/2009 10:10 AM EDT
|
|
Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
Here's an analogous situation for you to consider. FLSA requires regular pay for a non-exempt employee in a travel status while a passenger during regular working hours. FLSA does not require pay for the employee in a travel status as a passenger outside of normal work hours even though the travel is required by the employer. The logic is that the employee is not engaged in work duties and is free to do whatever such as read, sleep, play video games, etc.
Being a passenger is a lot more restricted than being on call in ones home town, yet FLSA does not require pay outside of normal work hours. Using the same logic here, it would seem that the employee is pretty much free to do whatever during the on call periods and is actually not entitled to on-call pay except as may be required under California wage and hour law. |
|
|
Overtime question
posted at 5/30/2009 11:50 AM EDT
|
|
Posts: 6
First: 5/29/2009 Last: 5/31/2009 |
Nork3 I don't know if I follow you fully. Are you just throwing a random situation out there? Or are you speaking in regards to my situation?
Yes, the employee while at home can watch TV and things like that, but he is fully restricted from doing anything that would keep him from being able to come into work, or to login to work from home to work on a problem. He is a Network Technician and he monitors our network worldwide. His night-time, is daytime overseas. He has to support overseas, if they have any problems, he gets called. A connection to a site goes down, he gets called, and he's up all night until it's fixed. I understand what you are saying, that if the employee basically is able to do whatever he wants, and if he gets called then he gets paid. But he can't do whatever he wants. He can't take a Tahoe trip on the weekend. He can't go to a ball game. It's not worth the risk of getting called and being forced to leave. My point is this, if we are forcing him to stay basically at home, not allowing him to go out to say a bar, or a concert with friends, then do we need to pay him for all hours he is on-call? He doesn't get called all that often (3-6 per 2 weeks), but he gets called often enough that we still need him on-call. And when he gets calls, if he's at home he must work on it immediately. If he's not at home, he better be close to his house. He rarely has to drive into work for a problem, but he has before. He lives an hour away, so we have him setup so he can do just about everything from his PC at home. Is anyone familiar with California law in cases like this? Here is the FLSA for "Pay while On-Call"... by what they are saying, it would seem we need to pay him more. http://labor-employment-law.lawyers.com/Pay-for-On-Call-Time.html I'm sorry I've been thrown into a situation so I am not really sure what to do about it. Thanks for the help. |
|
|
Overtime question
posted at 5/30/2009 2:06 PM EDT
|
|
Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
You don't disallow him to go to those events and he can go. he chooses not to go because he might get called away. The reporting tiome of one hour is not considered restrictive enough so the time is truly not required to be compensed.
As to the time sheet falsification I cannot comment. That depends upon your time keeping p[rocesses and instructions. Without knowing those and what he is doing I can't hazard a guess. |
|
|
Overtime question
posted at 5/30/2009 2:48 PM EDT
|
|
Posts: 6
First: 5/29/2009 Last: 5/31/2009 |
I guess you are right. We don't disallow him from going to a concert.
I will say this though. If he goes to a concert, and because of that he didn't hear his on-call cell phone, and a major problem went uncorrected for several hours until he noticed the missed calls... then he would get in quite a bit of trouble. We have fired people here for not answering their on-call phone when a major problem strikes. So no, we don't disallow it, but it's not a good idea to. We do disallow the use of alcohol while on-call, so we are disallowing him to do certain things. This is a tough one. Do you think the best/safest course of action would be to just confront this employee, and tell him to stop? We have paid him a considerable amount more than he's supposed to. About 10% more than he should be making. To be quite honest, I don't want the kid to get in trouble. I'm his boss, I feel at fault in some ways because I haven't caught it for so long. If I would have caught it long ago I could have confronted him about it and ended it before it became a huge deal. Now it's up there in amount and I'm worried he's going to get in serious trouble. So basically, is there any chance, if we persue termination of this employee, that our legal team will seek recoup of the funds as well as legal charges? I feel like he shouldn't receive more than termination since I am part at fault for not catching it. |
|
|
Overtime question
posted at 5/30/2009 4:54 PM EDT
|
|
Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Just to hop in here, I think paying 4 hours is fine ... as long as he doesn't actually WORK more than 4 hours. If however he gets a call and it takes 6 hours to get the work accomplished while on call, you would owe the 6 hours, not just the four.
I suggest running through the following set of questions at the DOL FLSA's website: http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER80.asp 'An employee who is on-call must be able to use the idle time for his or her own purposes or the on-call time is probably hours worked.' and "all time spent responding to calls is hours worked." |
Forums » Topic Forums » Legal Forum » Overtime question
