On-Call or Standby Work: Non-Exempt California Employees Must be Paid for Controlled Time

Many California employees perform standby or on-call work, where they are required to carry a cell phone or pager or to check their email on a regular basis, while they are otherwise going about the affairs of their personal life. Some employers call in their employees on the spot, while others accept a longer response time. Can an employer require an employee to be on-call after they leave the office? And if so, is the employer required by law to pay for on-call time?

If you are an exempt employee (i.e. administrative, executive, professional or outside sales position), you are not entitled to extra pay for on-call time. You may, however, negotiate for some type of compensation for standby time. Non-exempt employees, on the other hand, must be paid for standby time when the time is “controlled” rather than “uncontrolled.” Whether the standby time is controlled depends on the unique facts of each situation.

Controlled Time

Controlled standby generally means that an employee is required to remain on call on the employer’s premises, or so close to it that the employee cannot use the time effectively for their own purpose. So, for example, suppose you have finished work for the day and your boss tells you that she needs you to be on call for another 2 hours, but she needs you to be no further away than the coffee shop on the first floor of your building. Any controlled standby time must be added to regular time worked to determine if overtime compensation is due. Controlled standby time may be compensated at a different rate than is paid for other work by the same employee, so long as the employee is paid at least minimum wage.

Uncontrolled Time
Uncontrolled standby generally means that an employee is not required to remain on the employer’s premises, and is merely required to carry a cell phone or pager. Uncontrolled standby time may be spent predominantly for the employee’s own purposes. An employer may require that an employee on uncontrolled standby limit himself or herself to being no further away from the employer’s business than a twenty-minute response time. In one particular court case, three minutes was ruled to be too restrictive and was found to be controlled time.

Is it Controlled or Uncontrolled?
The California Department of Labor Standards (DLSE) considers the following standards to determine if on call time is compensable: (1) geographical restrictions on the employees’ movements; (2) required response time; (3) the nature of the employment; and (4) the extent the employer’s policy impacts personal activities during on call time.

The federal Ninth Circuit in California basically looks to two factors in determining if the time is controlled or uncontrolled: (1) the degree to which employees are free to engage in personal activities and (2) the agreement between the employer and employee. The U.S. Supreme Court looks at whether the time is spent predominantly for the employer’s or the employee’s benefit. Here are further examples of court decisions ruling that standby time was uncontrolled:

— A hospital biomedical repair technician was not entitled to compensation even though he was the only on-call tech, was required to respond to all calls, responded to an average of 4 to 5 calls per week, was on-call by beeper, had to respond within 20 minutes, and could not be intoxicated if called.

— Detectives were not entitled to pay for time spent on-call during meal breaks, even though they were required to remain sober and respond via beeper within 20 minutes.

— An ambulance dispatcher was not entitled to pay while on-call because she was allowed to visit friends, entertain guests, sleep, watch television, do laundry and babysit.

— A canine officer was not entitled to compensation though required to carry a pager, avoid alcohol and respond within 10 minutes.
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(Reviewed 9-08)