In the 1940’s, a soap company in Chicago hired a small crew of firefighters to live on the premises and be available for emergencies. The crew officially worked a nine-hour shift but were also required to sleep in a designated location and respond alarms, if necessary. A legal dispute arose about whether the “on call” time should have been compensated as hours worked. The U.S. Supreme Court ruled that it did, with Justice Robert Jackson stating:
“Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.” Armour & Co. v. Wantock (1944) 323 U.S. 126, 133.
The Supreme Court’s ruling opened the door for a litany of subsequent cases on the issue of “on call pay.” In the days of modern cellphone technology, the issue has become even more complex. After all, with a cellphone in every pocket, a beckoning call from an employer is just seconds away.
When a controversy arises, courts typically consider the following in determining whether on-call time should be paid as hours worked: (1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on the employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether the use of a pager could ease restrictions; and (7) whether the employee had actually engaged in personal activities during the call-in time. Seymore v. Metson Marine, Inc., (1st Dist. 2011) 194 Cal. App. 4th 361.
Are there excessive geographic restrictions on the employee’s movements?
As a general rule, employers should have as little influence as possible on an employee’s movements outside of work. If the employer says, “Don’t be more than a half hour away from the office,” the necessity of on call pay is triggered. While the court has not made a determination on the amount of the restriction; the shorter the time, the greater the control.
Is the frequency of calls unduly restrictive?
It is not unusual, nor illegal, for an employer to call an employee about routine issues related to the employment relationship. However, when the calls occur multiple times per day or last for a prolonged period of time, it would be viewed as unduly restrictive.
Is there a fixed time limit for the employee to respond to the call that is unduly restrictive?
If an employer has a policy that all calls must be returned within five minutes, it could be considered unduly restrictive. Once again, the shorter the time, the greater the control.
Can the on-call employee easily trade his/her on-call responsibilities with another employee?
Imagine an employer that operates a 24-hour facility with only one information technology (IT) employee. Any time a computer breaks down, the IT employee must be contacted. Since the task is not easily tradeable with other employers, the IT employee could be considered “on call” during all hours of the day.
Can the employee engage in personal activities during on-call periods? If so, to what extent?
If the restrictions placed on the time of the employee are such that the employee is unable effectively to engage in private pursuits, the time is subject to the control of the employer and constitutes hours worked. (Madera Police Officers Association v. City of Madera (1984) 36 Cal.3d 403).
What is the nature of the employment relationship and the industry practice?
In certain industries (firefighters, security guards, medical professionals, etc.) on call time is part of the nature of the career. In other industries, such as retail, there is not an expectation that work is to be undertaken outside of the store or that employees should be ready at any given moment to return for a big sale. When determining excessive control, Courts will look to the industry standard.
Are there any other limitations on the employee’s ability to use the time for his/her own benefit?
Courts have drawn a distinction between “engaged to be waiting” and “waiting to be engaged.” Time spent “waiting to be engaged” generally refers to time when the employee can pursue other activities and is not compensable.
Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He is also the author of Land of Liability: A Guide for California Employers. He can be reached at (951) 652-9000.