On-Call Policy in CA

Linda_CA

We are in the process of developing an On-Call policy and I have two conflicting pieces of information. One resource indicated that you can pay in a lump sum as long as the lump sum meets the min. wage requirements. The other resource indicates that you can pay any amount (in a lump sum) and it doesn't have to meet min. wage requirement in CA because an ee is not working and is only on-call.

Does anyone have a on-call policy in CA at the present time? I would be interested in hearing from you.

Hatchetman

The issue for your company is whether is how much "freedom" the employee enjoys while on the "on-call status." For example, if the employee is at home, has a cellphone, beeper, or home phone through which he can be reached, and is basically free to pursue off duty activities, and only has to respond within a reasonable time (may be 30 minutes) if called, then I think you'd have a pretty good case to make that the employee isn't working. In short, the employee is free to primarily use the time for his or her own benefit, it isn't work time.

On the other hand, the more the employee is restricted, such as in a tighter response time, and requirement to stay at the employer's facility (e.g., sleep over), and constant call backs, the more likely it is that the employee may be considered at work and thus the on call status compensable as work time. Other factors are also considered in determining if the on call employee is considered at work or not: things like the employment relationship between the company and the employee; the practice of your industry regarding on call status; the frequency of calls that may unreasonably interfere with the employee's ability to use the time to his own benefit. There is no definitive line established but looking at the situation in total that will determine whether the employee is on call and not considered at work or on call and considered at work.

Take a look at 29CFR785.17, the FLSA regulations. California has no separate provisions for on call time.

Even if the employee may be considered not to be at work because he is free to use the time for his own benefit, many employer will pay a small hourly rate for the "inconvenience" or for the enticement to have emplyees sign up for on call. This could range for 35 or 50 cents per hour to several dollars -- depending on what the need is, the regular rate of pay for the employee (you would probably pay a clerical employee who would be on call far less than a doctor, for instance, who would be on call even though both would NOT be considered working).

Also, if you do compensate the employee for on call, then that will affect the rate of pay calculation when deterining issues like overtime.

Hoepfully, from this information you may be able to draw up a basic policy.