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Precise Pay, Inc. Toll Free: 888.303.1500 Fax: 800.228.4051
Northern California 3333 Bowers Ave. Suite 130 Santa Clara, CA 95054
Southern California 1630 S. Sunkist Street Suite O Anaheim, CA 92806
Utah 2411 Kiesel Ave. Suite 500 Ogden, UT 84401
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Call Back and Standby Time Rulings
The State of
California Labor Commissioner’s Office supplied the following information: "CALLBACK"
and "STANDBY" TIME An
employer is obligated to pay the wages of an hourly employee for all time that
the employee is under the control of the employer. (See "Definitions",
Section 2(C) of the IWC Order) An
employee who is required to remain at the employer's place of business and
respond to emergency calls is working and must be paid for all hours -- even if
not doing anything but waiting for something to happen. The United States Supreme Court
held in Armour & Co. v. Wantock, (1944)
323 U.S. 126 that "an employer, if he chooses, may hire a man to do nothing
or to do nothing but wait for something to happen. Refraining from other
activities often is a factor of instant readiness to serve, and idleness plays a
part in all employments in a stand-by capacity..." On-call
or standby time at the work site are hours worked that must be paid for. On-call
or standby time is more difficult to establish when an employee is not required
to remain on the employer's premises. It must be determined if the time is
characterized as "controlled" rather than "uncontrolled"
time, as follows: Controlled Standby
occurs when an employee is under such direction and control that he or she must
immediately respond to calls from the employer to return to work. Cases of this
nature should be closely examined to differentiate how requiring an employee to
remain at home and keep the telephone line free in order to be able to receive
calls from the employer and be summoned back to work differs from simply being
required to remain at work awaiting something or nothing to happen. The main
factor is the amount of actual freedom the employee has to pursue whatever
activities he or she wishes. For example, if one must stay within a beeper range, regardless of what it might be, this may restrict going out of the area. Requiring an employee to be capable of performing his/her duties if called to work is not necessarily depriving the employee of complete freedom. The issue is, then, whether the employer has exercised enough direction and control as to make such standby time, regardless if spent at home watching TV, compensable.
Uncontrolled Standby
occurs where an employee has the choice of being available or not, to respond to
a request by the employer to return to work for an emergency, etc. The employee
should be completely unrestricted so that the time can be spent for his or her
own purposes. This is called "free" standby time, and there is no
requirement that employees be paid for this time -- as long as they are free to
come and go as they please with no threat of adverse action if they choose not
to be available. If payment is made for free standby time, it does not have to
meet the minimum wage and is not included in the computation of the regular rate
of pay. All
time spent on callbacks during a standby period is counted as time worked. This
includes a reasonable time for travel from the point at which the employee is
summoned to return to work, to the work site and return. Callback
or controlled standby time is exactly the same as regular hours worked, and the
regular or agreed wage for this period, as well as applicable overtime, must be
paid. If an employer's special rate for call back in overtime hours is at least
equal to time and one-half the regular rate for time worked including travel
time, then the overtime requirement has been met. When
an employee is at the place of employment at the request or requirement of the
employer, the time is compensable. However, situations such as
"show-ups" or "shape-ups" used in certain occupations,
whereby the employees are hired from groups who show up looking for employment
on a day-by-day basis generally do not require compensation as those persons are
not required to "show-up" on a regular basis. On the other hand, if
the employer requires the individual employee to show-up and the employee is not
put to work, the employee is entitled to at least "reporting time pay"
under the provisions of the IWC Orders, unless the employee is exempt. For
employees who are required to remain at home during certain periods, or who are
required to wear a "beeper" and be available for call back, a two-part
preliminary analysis is used to determine whether restricted time is compensable:
First, are the restrictions placed on the employee primarily directed toward the
fulfillment of the employer's requirements and policies? Second, is the employee
substantially restricted so as to be unable to attend to private pursuits? As
an example, if the employer requires the employee to remain at home at all times
the employee may still be able to attend to private pursuits. However, if the
employer also requires that the employee leave his telephone free so as to be
able to receive any call the employer might make, that further restricts the
employee's freedom. If the employer further insists that the employee wear his
uniform at all times while on call, the cumulative effect of the restrictions
would probably compel a finding that the time is compensable.
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