On-Call Unpaid Wages Lawsuits

Unpaid wages lawsuits often involve work in which employees are not paid for overtime wages, or what's referred to as egress-regress time, such as logging on or off a computer at the start or end of the day. But sometimes unpaid wages claims might also involve situations where the employee is required to be on-call but is not being paid for that time. These unpaid on-call work situations require that the employee be available for work if requested meaning that the employee is not at liberty to do other things while on call that would make him unavailable for work. Under federal law and some state laws, workers in such situations may be entitled to additional pay.

Federal law requires that employees are paid for time that is under the control of the employer and that benefits the employer. If the employee does not have the ability to spend his or her time however he or she wants because of employment duties, the employee must be paid for that time.

For example, if an employee is on-call and must remain on the premises while on-call even if he or she is able to read books, talk on the phone or play computer games that employee must be paid for that time. This does not just refer to "on-call" time in the traditional sense, such as it refers to a doctor being on-call. It can also include time that a sales associate spends in a store before or after hours waiting for inventory to arrive, even if in that time the employee is not required to perform other work-related duties.

Factors that contribute to whether an employee should be paid for on-call time include ability to leave the work premises, distance the employee can travel from the premises (an employee who is allowed only to go to the coffee shop down the street but must "remain close" to work, may be eligible for pay), type of restrictions on the employee's time, likelihood of receiving a call (or frequency of calls) and amount of time the employee has to respond to a call.

Employees who may be required to be on-call include but are not limited to trucking or shipping employees, appliance repair people, hotel employees, emergency response workers, company maintenance workers, medical workers, IT employees and a variety of other employees who may be required to be on-call either to assist their company directly or to help customers of the company.

On-call pay does not count for workers who are properly classified as exempt. Furthermore, regardless of whether or not an employee is paid for on-call time, if the employee receives a call and responds to that call even just to phone the office to determine that no further response is required the time spent responding to the call is payable time.

Retail companies have used on-call scheduling to call workers in on short notice but then do not compensate them for work if it is a slow day. Some large retailers, including J. Crew, Abercrombie & Fitch, and Gap all announced they would stop the practice after New York attorney general Eric Schneiderman announced an investigation into the practice.

According to the attorney general, some companies require employees to report to their employer before their shift to determine whether they will be needed for work that day. But these employees must also plan transportation to and from work, arrange childcare on short notice (or pay for it even if they ultimately don’t need it), and plan their finances around unpredictable shifts. Such practices also make it difficult to for workers to find second jobs or attend school.

Lawsuits have been filed against retail companies alleging the practice of on-call scheduling is illegal. One such lawsuit was filed in 2015 by Raalon Kennedy against Forever 21, alleging the practice of requiring employees to show up for on-call shifts only to be sent home with no pay violates California wage and hour laws. Under California law, employees who report to work but sent home before half the actual shift is complete must be given "reporting time pay." The lawsuit alleges retailers classify the shifts as "on call" to avoid paying for reporting time.

Travel time can be difficult to determine because it often includes time the employee would be at work and time the employee would normally be off. Generally, commuting time does not count as work time. If, however, the employee spends time traveling as a regular part of his or her workday—such as traveling from job site to job site—then that time does count as paid time and the employee should be paid for it.

If the employee regularly works at one job site and is given a special one-day assignment in another city—not requiring an overnight stay—then any travel time to and from the city that is above normal commute time counts as paid time.

Overnight travel for which the employee cannot return home at night counts as work time when it involves the employee's regular working schedule, but also when it includes regular working hours on non-working days. For example, if an employee returns home from a conference taking a flight from 11:00 am to 2:00 pm on a Saturday, those three hours count as working time.

The bottom line is that time a non-exempt employee spends under the control of the employer and to the benefit of the employer is time the employee should be paid for. Such lawsuits could involve overtime claims as well, if the employees involved are already working full-time hours before on-call time is factored in.

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Last updated on Jun-20-16