How do we decide whether we need to pay for responding to off-duty phone calls? — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

How do we decide whether we need to pay for responding to off-duty phone calls?

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Q. We would like to require employees in one of our departments to promptly answer their company-provided cell phones even when they are away from work. If we impose this rule, do we have to pay these employees around the clock?

A. That depends on the number of restrictions you place on your employees while they are away from work. The fact that your employees are required to carry their cell phones with them while off the work site does not, in and of itself, indicate that all their off-site time is compensable.

Generally, California employers must pay nonexempt workers hourly wages for all the time they are under the employer’s control. The Industrial Welfare Commission’s definition of “hours worked” is “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

On-call or standby time at the employer’s work site clearly would be considered hours worked for which the employee must be compensated, even if the employee does nothing but wait for something to happen.

However, the question of whether on-call or standby time off the work site would be considered compensable isn’t always clear. To determine whether off-site on-call time is compensable, employers must examine the restrictions they place on the employee.

Courts have found a variety of factors determine whether an employer-imposed restriction would transform on-call time into compensable “hours worked”:

  • Geographic restrictions on employees’ movements
  • The speed with which employers require employees to respond to a call
  • Frequency of calls during on-call hours
  • The extent to which employees can engage in personal activities during on-call periods.

Cases on this issue have turned on the highly fact-driven assessment of whether the employee is “engaged to wait” or “waited to be engaged” or more specifically, whether the employee’s time is spent predominantly for the employer’s or the employee’s benefit.

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