What to do if my employer requires me to be on-call but does not pay me for the on-call time.

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What to do if my employer requires me to be on-call but does not pay me for the on-call time.

If I am required to respond while on-call he grants me equivalent comp time. Is this legal? In addition to a 40-hour work week, I haven been required by my employer to be on-call when our office is closed for the past 18 months. Until recently, I was an hourly employee. Earlier this month, I was changed to a salaried employee for the stated purpose of avoiding paying me directly for time spent on-call. Should I report this to the Dept of Industrial Relations?

Asked on March 29, 2012 under Employment Labor Law, California


Aryeh Leichter / Leichter Law Firm, APC

Answered 11 years ago | Contributor

If you're required to remain on call on the employer's premises or so close to it that you can't use such time effectively for your own purposes, all such time is considered "hours worked" for which you must be compensated.  However, if your on-call is sufficiently unrestricted so that you it can be spent predominantly for your own purposes, you would not be entitled to compensation for such time.

Whether or not your on-call time is compensable is a fact-specific issue depedent on the facts of your particular circumstances.

Even if you're paid on a salary basis, you would still be entitled to compensation if the on-call time is considered hours worked unless you were classified as an exempt employee.  Whether you've been properly classified as exempt is also a fact-specific inquiry.

Please call (213-381-6557) or email me (ari@leichterlawfirm.com) if you would like to discuss the matter further.

All the best,

Ari Leichter


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