San Francisco Employment Law Firm Blog
The California on-call pay laws are largely based on balancing fairness between employees and employers. Generally, hours for which an employee has been hired to do nothing while merely waiting for something to happen are hours subject to the control of the employers, and constitute hours worked. (Armour & Co. v Wantock (1944); Skidmore v Swift (1944)). In the case of “standby” or “on-call” time, if the restrictions placed on the time of employee are such that the employee is unable to effectively engage in personal activities, the time is subject to the control of the employer and constitutes hours worked. (Madera Police Officers Association v. City of Madera (1984)).
The determination whether standby time is “controlled” such that it constitutes compensable hours under California law is a multi-factor analysis, set in the 9th Circuit case Berry v County of Sonoma (1994). These factors are:
- The geographic restrictions on the employee’s movements;
- The frequency of the calls to work;
- Whether there is a fixed time limit for response and if so – how restrictive it is;
- How easily an on-call employee can trade his on-call responsibilities with another employee; and
- Whether and to what extent the employee actually engages in personal activities during the on-call period.
Prior California cases make it clear that it is of not much importance to this analysis whether an employee was permitted to sleep, watch TV, read or engage in other personal activities while subject to his employer’s control. (Morillion v Royal Packing Co.; Aguilar v Association for Retarted Citizens).
In Renfro v City of Emporia Kansas, the US Court of Appeal for the 10th circuit analyzed whether on-call time was compensable under the Federal Labor Standards Act (FLSA). That court held that firefighters who were required to respond to, on average, three calls per 24-hour on-call period, and who were required to report to the employer’s premises within 20 minutes, could not effectively use the time for their own purposes such that it was a controlled standby, and thus they were entitled to on-call pay.
In any case involving unpaid on-call time or standby time, the analysis should often start from the employer’s own rules and policies on what on-call time means based on their own handbook and other related documentation.