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Posted on May 26, 2023 | Employment Law
State law provides strong employee protections, especially regarding wage and hour laws. These laws include protections and regulations for compensation when non-exempt employees are “on call” or on “standby” for their work. Depending on the circumstances of your on-call work, you may be entitled to at least the minimum wage for those hours. These hours also factor into determining overtime pay. If the employee is subject to a certain amount of control by the employer while on standby, they are owed compensation.
On-call or standby time refers to time that is not spent working but is still under an employer’s control, as the employee is unable to use that time off work to do things they’d like to do. Often, this time refers to unusual hours in certain fields. This includes:
Although these workers are not actively working, they can’t use their time to do other things because they need to be ready to work at any moment.
If an employee is engaged to work, and subject to the employer’s control, they are entitled to pay for each hour worked. This pay does not have to be their usual rate, but it can’t be less than the minimum wage. Any “hours worked” must be under sufficient employer control, which is determined by several factors.
Even if an employee is doing non-work-related activities, they may still be considered controlled by their employer. Whether an employer’s control is significant enough to warrant pay depends on these factors:
The impact of these factors varies based on the specific circumstances. Generally, the more control an employee’s employer has over their time, the more likely they are to be entitled to compensation for it.
If you work standby or on call, and believe you should be receiving compensation for some or all of your time, you can file a claim. If your employer isn’t paying you and should be, this is a violation of wage and hour laws. You can file with the California Labor Commissioner’s Office or with a civil court. You could earn compensation for lost wages. These claims frequently become class action claims, as an employer failing to pay one on-call employee is likely doing the same with other employees.
If you plan to file a claim, first discuss your situation with a wage and hour attorney. That way, you can determine if your claim is valid and how much of your work you should’ve been compensated for. An attorney can also help you file your claim, gather evidence, and find others who have experienced the same wage and hour violations.
A: If an employer exerts significant control over the employee’s time, the employee is entitled to compensation. There is likely significant employer control over an employee’s time if they must:
A: If an employer has control over an employee’s time for some or all the on-call hours, that employee is entitled to compensation. Their pay does not have to be the same as their regular rate of pay, but it cannot be less than the minimum wage. Any time that the employee is required or permitted to work, even if not required, should be compensated.
A: Being an on-call or standby worker means that you are not actively working but need to be available to work. How you use your time while on standby is up to you, unless you are required to work. If you can’t use your time as you want, then your employer has control over your time and owes you compensation. This type of work often applies to employees with odd hours, such as healthcare workers who work several-day-long shifts or security guards who remain on-site for several days.
A: Being “on call” and being on “standby” refer to the same thing in the California Labor Code. Both refer to hours when an employee is not actively working or completing job duties but must be available to do so. If the employee can’t use their time as they want to a certain extent, the employer is exerting control over their time, and they are owed compensation.
If you believe your employer isn’t paying you the wages you’re owed, you should work with an experienced San Diego employment lawyer. Contact Nosratilaw, A Professional Law Corporation, today to determine your legal options.