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

UPDATED: Sep 18, 2010

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 12 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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