When California Employers Must Pay for Worker Time Waiting for the Call

A California worker recently asked us through the blog site whether his employer should pay for his “stand-by” or “on-call” time.  He wrote, in part: “On some days, we are expected to be on-call for certain shifts … The sign posted at the store informs us that failure to show up as requested will result in negative consequences … However, [while] we are not on paid stand-by, the belief is that  we must be within the area and must answer our phones if called.  Can I be punished for failing to respond?”

We covered the issue of “on-call” time in “On-Call Employees in California”.  Whether an employer must pay a worker for that time depends on the degree the company requires that worker to restrict his/her personal activities in order to respond to the call. Factors include:

• any company-imposed geographic restrictions on the employee’s location;

• required response time to a call;

• the nature of the employment relationship and industry practice; and

• any other limitation on the employee’s ability to use the time for personal benefit.

A policy that provides employees an option of responding to a call probably does not require the company to pay the employees for choosing to be available.  For example, a business that puts out the word of a hot prospect to several salespeople, with the referral going to the first employee to call-in is likely an unpaid standby situation.

On the other hand, a policy that requires a designated worker to stay within specific geographic limits, to maintain open telephone or text message contact during specific hours and to arrive at the worksite (or otherwise begin working) within a limited amount of time after receiving employer’s request is almost certainly a paid on-call arrangement.

The above worker asked whether his employer must pay when it was his “belief” that he had to be within a certain area and had to answer his phone if called.

From the employee’s perspective, he should promptly and responsibly request written clarification of the company’s policy, thus either confirming or dispelling his impression that he is subject to mandatory response.

Similarly, from the employer’s perspective, it is important to have clear written policy, one way or the other.  An employer who doesn’t pay for stand-by but, as in the above worker’s case, vaguely announces “negative consequences” for failing to respond to a call, risks a later government or court finding that it has failed to pay for required stand-by time.

The above worker also asked if he could be “punished” for failing to respond.  As he describes an unpaid on-call arrangement, then in theory the company could not – and should not – reprimand or otherwise discipline an employee who does not answer a call to come to work.

On the other hand, a business with a clear paid, mandatory on-call policy can legitimately take adverse action against the individual who fails to comply.  Certainly, the policy should spell out the range of consequences possible.  On the degree of discipline a company should exercise in the case of a violation, the answer ultimately lies in the experience and (hopefully good) judgment of management.

For help to employers on how to structure, administer or enforce an on-call policy, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.