California has specific and strong worker protections, particularly for wage and hour law. Some employees are subject to “on-call” or “standby” time, where they are not technically working but may be required to work if notified. Although this arrangement has benefits, it can also be incredibly restrictive on what an employee can do with their time.
Nonexempt employees may be entitled to pay for that time, depending on the circumstances of that standby and on-call time. Your on-call hours could also count towards overtime. Whether you deserve at least minimum wage pay for on-call hours depends on how much control your employer has over your standby time.
What Jobs Have On-Call and Standby Time?
On-call and standby time is time that an employee is subject to an employer’s control without actually working. An employee must be ready to work, so they cannot use this time as free time. On-call and standby time are often necessary in fields where unusual hours are required. This includes:
- Healthcare Staff: This includes doctors, nurses, and other medical staff. These employees may have shifts that last for two or three days, staying at the hospital during their on-call time and sleeping at the hospital. In other cases, healthcare workers may not be at a hospital but are required to return to work within a specified time of being called in.
- Firefighters: A firefighter’s on-call time may be spent on-site at their station unless they are needed.
- Security Guards: These employees may be on standby as they work on their premises for several days so they can respond to potential disturbances.
- Coroners: A coroner is needed within a certain time frame after a death.
- Restaurant Employees: Some restaurant workers are on call in case of a dinner rush.
These employees may be on the worksite or at home. Although they are not actively working, they must be ready to work.
Is an On-Call Employee Entitled to Pay?
If a standby or on-call employee’s time is spent waiting for work, and their time is subject to their employer’s control, they are entitled to compensation. A nonexempt employee is entitled to pay for every hour of work that they were suffered or permitted to work. This compensation may not be at the employee’s regular rate of pay, but it can’t be less than the minimum wage. There are several factors that determine if the hours that an employee works are under their employer’s control.
Determining Employer Control
For an employee to be paid for standby time, an employer must exert a certain amount of control over their time. If an employee is engaged in personal activities, that doesn’t automatically mean that they are not entitled to pay. Whether an employer’s control entitles an employee to pay depends on several factors, including:
- There are excessive restrictions on the employee’s geographical movement. This may mean that an employee is required to remain on the job site. It may also mean that they are not allowed to be far from work, although whether this is considered an excessive restriction depends on the circumstances.
- There are frequent calls. An employee who receives frequent calls that are extremely restrictive, and prevents them from using their time for personal reasons, may be entitled to pay.
- There is a fixed response time. This means that an on-call employee must respond to a call within a fixed or short amount of time. A fixed response time prevents the employee from using their time for other things, so this time should be paid.
- It is hard to trade duties with another employee. If an employee can easily trade their on-call responsibilities to another employee, then their employer is not significantly controlling their time. If there are negative consequences for an employee trading their on-call time, this time is considered employer-controlled.
- The employee’s time is spent primarily engaged with work business rather than personal activities. When an employee can engage in personal activities with little to no interruption, they will likely not be entitled to pay. However, if their personal time was frequently interrupted and spent for the employer, this is significant control and should be compensated.
Q: What Is the Policy for On-Call and Standby Time and Pay in California?
A: An employee whose time is under significant control from their employer is entitled to pay. Significant control may refer to:
- Time spent primarily on business-related activities
- Receiving extremely frequent calls to work
- A fixed and short required response time to calls
- Having to remain at the workplace while on call
Q: What Are the Employment Law Changes for 2023 in California?
A: As of January 1st, 2023, the following changes were made to California’s labor law:
- An increase to the statewide minimum wage and minimum salary applying to all employers, regardless of whether they are considered large or small employers
- Adding bereavement leave as a form of protected leave
- Expanding the definitions of family members and designated persons who an employee can leave work to provide care for
- Extended protections for COVID-19
- Changes to calculating overtime pay for agricultural workers
- Employee retaliation protection for emergency conditions
- Improved transparency for employer pay reporting
Q: What Is the Standby Pay Law in California?
A: An employee who is on standby is required to receive compensation for any hours on standby if their employer exercises significant control over their time. This compensation is not required to be their regular rate of pay, but it must be at least minimum wage. Even if an employee isn’t working, excessive control means that they cannot use their time for personal reasons. Therefore, it should be compensated.
Q: What Is the Law for On-Call Shifts in California?
A: On-call shifts should be compensated if the employee is subject to their employer’s control. On-call shifts are generally required for industries like healthcare employees, firefighters, and security guards. These occupations often require multiple-day shifts where the employee is on the job site but isn’t actively working. When an employee is required to remain on-site, their employer has significant control over their time, and they are owed pay.
Contact Shirazi Law Firm, P.C.
You need to work with an experienced attorney if you are not receiving compensation for time that is controlled by your employer. Contact Shirazi Law Firm, P.C., today to see how our many years of experience with employment law can protect your interests.