Some employers are turning to on-call employees to keep down labor costs. Done right, it can save you money. But on-call employees can also become a liability risk. Several lawsuits were recently filed by on-call employees who claim that employers are restricting their freedom too much, and not paying them for it, in violation of state and federal laws.
In Gomez v. Lincare Inc., 173 Cal. App. 4th 508, 522 (April 3, 2009), a California appellate court recently revived a class action brought by on-call workers of an in-home respiratory services provider. The on-call employees allege that they deserve compensation for the time spent on call dealing with customer questions by phone.
In Lincare, on-call employees undertook between two to six hours per week of answering customers’ telephone calls. The appellate court held that this exceeds a “de minimis amount” and remanded the case for a final determination of liability.
In Sweat v. Battelle Memorial Institute, Case No. 07-cv-401-TS (D. Utah), a group of lab technicians is suing a science and technology development company, alleging that the company required them to be on call during their lunch break, mandating they be on company premises, in uniform and available for work. The plaintiffs claim they should be compensated for that time.
The less freedom an employee has while on call, the higher the risk that the on-call time qualifies as paid time. Employers who are using or intend to use on-call employees to keep costs down should look at what restrictions they place on on-call time. Restrictions such as how quickly employees must respond to telephone calls, how many calls an employee actually receives while on call, and geographic restrictions, such as whether employees are required to be at home or near the office, should be evaluated.
It is important that employers avoid not overly restricting on-call employees’ freedoms. Make sure on-call employees have the flexibility to do what they want to do. On-call employees who are free to go to a restaurant or go play golf are not an issue. But employees who are required to sit in their house and answer frequent telephone calls may have to be paid for that time.