Can your employer ask why you are unavailable for work when it is your scheduled time off and they try to call you in?

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Can your employer ask why you are unavailable for work when it is your scheduled time off and they try to call you in?

I work for a fire dept. When we are hired we are told we are subject to call back “when available”. We are issued city cell phones we must carry 24/7. We are also told we must answer them when they ring. If they call us when we are off duty and we tell them we are unavailable, can they ask us why? They tell us they can, but we are not paid on call. Is this allowed?

Asked on September 18, 2010 under Employment Labor Law, Tennessee

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

As a fire fighter, you are probably subject to a union or collective bargaining agreement. If you are, then if that contract says anything about his topic, it will control. To the extent there is no contractual language about it, then an employer may certainly ask why you are unavailable, if there is an an expectation that you should be able to come in at need when your are available (i.e., they have an interest in seeing if you're never available when they need you).

However, what they can do with that information is limited by two things:

1) What's in your contract or union agreement; i.e.  if they can't take action against you for being unavailable, they can ask, but then can't necessarily act.

2) There's no discrimination against employees for a number of protected categories (e.g. race, religion, age over 40, sex, disability at  the federal level; your state or municipality may add others) and if you're unabailable owing to your involvement in a group or activity related to a protected category, they can't take action.

However, if there's no contractual protection and you're not invovled in something protected, if you're never available when they need you, they could take action.


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