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Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
Written: May 2012

Oftentimes, California employees are asked to be "on call" and in turn to respond to calls or emergencies after hours and on weekends. The question then arises as to whether or not the on call employee is entitled to pay, and if so what are the "hours worked"—the entire period of time the employee is on call, or just the time spent addressing the emergency.

Hours Worked.

In California, the Industrial Welfare Commission ("IWC") Wage Orders broadly define "hours worked" as the time during which an employee is "subject to the control of the employer," and includes all the time the employee is "suffered or permitted to work, whether or not required to do so." The number of "hours worked" is the first and most important analysis because the number of hours worked by an employee determines whether there has been violations of the minimum wages laws and in turn the overtime laws.

On Call Time For Employees in the Housekeeping Industry.

If an employee resides on the premises of a location covered by IWC Wage Order 5-98, only the time actually spent working will be considered hours worked. [DLSE Enforcement Policies and Interpretation Manual, section 45.3 - 45.3.1].

Travel and Commuting Time.

In general, employers are not required to pay their employees for time spent commuting to or from work, even if in a vehicle owned, leased, or subsidized by the employer or used for the purpose of ride sharing, as defined in Vehicle Code section 522. See California Labor Code section 510.

For more information on the compensability of travel time, please see my article, "Compensability of Travel Time and Off-The-Clock Work."

On Call Time at the Employer's Place of Business.

As mentioned in the introduction, an employee who is required to remain at the employer's place of business must be paid for that standby time (also commonly referred to as waiting time). This includes the restaurant server who is asked not to clock in until there are sufficient customers, the seamstress who is waiting for the customer to arrive with an item requiring alteration, the technical support guy who is waiting for a call from a disturbed person who has probably spent the last few hours screaming at the computer, and so on. You get the picture…if your employee is at the employers place of business just "standing by" the employee must be compensated for those hours. See, Brock v. DeWitt (W.D. Mo. 1986) 633 F.Supp. 892, 895-896 (where the Court held that restaurant employees who were directed to report, but not permitted to clock in until there was sufficient work, must be paid for that on-call time.

On Call Time Away from the Employer's Place of Business.

Where the employee is not required to remain on the employer's premises, but is required to respond to emergency calls and/or report back to work within a prescribed time frame is where the analysis of whether the employee is entitled to pay for on call time turns on whether the employee is "subject to the control of the employer" during the on call time period, or is alternatively free to engage in personal pursuits, subject only to the requirement that the employee can be reached if needed. In the later instance, the on-call time, or standby time, is not considered hours worked. In the former, each case requires a specific analysis of the facts.

Excepting individuals who sleep where they work (e.g. resident managers, individuals in the housekeeping industry, etc..) for which there are different rules, whether an employee must be paid for on call or standby time away from the employer's place of business turns on whether the employee is "subject to the control of the employer" during the on call time period, or is alternatively free to engage in personal pursuits, subject only to the requirement that the employee can be reached if needed. To determine if the employee is "subject to the control of the employer," the Courts look at the restrictions placed on the employee, including:

1. whether there was an on-premises living requirement;
2. whether there were excessive geographical restrictions on employee's movements;
3. whether the frequency of calls was unduly restrictive;
4. whether a fixed time limit for response was unduly restrictive;
5. whether the on-call employee could easily trade on-call responsibilities;
6. whether use of a pager [or cell phone] could ease restrictions; and
7. whether the employee had actually engaged in personal activities during call-in time.

See, Gomez v. Lincare, Inc., 173 Cal.App.4th 508 (2009), quoting Owens v. Local No. 169, 971 F.2d 347, 351 (9th Cir. 1992); see also, Berry v. County of Sonoma, 30 F.3d 1174, 1183 (1994) 5 and Seymore v. Metson Marine, Inc., 194 Cal.App.4th 361 (2011).

Needless to say, it is a fact specific analysis, but in general the courts are loathe to compensate employees for on call time when the employee is permitted, or free, to leave the employer's workplace. That said, lets now examine when an employee should be entitled to pay for on call time.

In Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000), the California Supreme Court explained that "[t]he level of the employer's control over its employees, rather than the mere fact that the employer requires the employees' activity, is determinative” of whether particular hours constitute "hours worked." The Court went onto hold that time spent by agricultural employees on their employer's provided bus which took them to and from the field constituted hours worked even thought the employees were free to read on the bus, or perform other personal activities.

If an employee is required to stay at home and keep the telephone line free from personal calls so the employer can call, the employee is not free to engage in personal pursuits (s/he is stuck at home) and therefore such time would be considered hours worked. [Wilcox, California Employment Law (Matthew Bender 1996) 3.07(1)(3), p 3-60]. That said, if the employee is free to move about and is merely required to keep an employer provided cell phone on hand, the employee is free to engage in personal pursuits and such time would not be considered hours worked. See, DLSE Enforcement Policies and Interpretation Manual, sections 46.2 - 46.4.2.2. See also, Owens v. Local No. 169 971 F. 2d 347 (9th Cir. 1992), in which the Court held employees were not entitled to pay for on call hours because the employees "were not required to stay at home or anywhere else," were not required to accept call-ins, were provided pagers to make the call-ins easier, and "engaged in a wide variety of personal activities during the on-call hours . . . ." (Id. at p. 356.).

In an unpublished decision, the Fourth Appellate Court in Vandiver v. State of California (2010) held, "an employee who is allowed to accept outside paid employment cannot establish that the restrictions on his activities entitled him to compensation from another employer during the same time…the complaint really alleged only that the standby status interfered with personal activities only to the extent that Vandiver could have been called at any time. That limitation alone is insufficient as a matter of law to require compensation."

At bottom, if an employee is merely required to carry a cell phone the employee is probably not entitled to pay for the on-call time. That is not to say the employee is not entitled to pay for the time the employee actually spends, however, working if the employee is forced to answer, take, or make a call on behalf of the employer.

Work Actually Performed While On Call.

If while on call, whether compensatory or not, the employee actually does engage in work (responds to a call), all time spent by the employee performing his job duties or otherwise responding is compensable time and must be paid unless de minimus. Employees must keep accurate records of time working while on call. Pursuant to California law, unless the total time worked (not per response) is de minimus (negligible, or less than 15 minutes) the employee must be paid.

Section 5 of each IWC Wage Order provides:

"(A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee's usual or scheduled day's work, the employee shall be paid for half the usual or scheduled day's work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee's regular rate of pay, which shall not be less than the minimum wage.
(B) If an employee is required to report for work a second time on any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee's regular rate of pay, which shall not be less than the minimum wage.
(C) The foregoing reporting time pay provisions are not applicable when: (1) Operations cannot commence or continue due to threats to employees or property; or when recommended by civil authorities; or (2) Public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or (3) the interruption of work is caused by an Act of God or other cause not within the employer's control.
(D) This section shall not apply to an employee on paid standby who is called to perform assigned work at a time other than the employee's scheduled reporting time."

Under Section (A), if an employee is scheduled to report to work for an 8-hour shift and only works 1 hour, the employer must pay the employee for 4 hours of pay at his or her regular rate of pay (one for the hour worked, and three as reporting time pay). Only the one-hour actually worked, however, counts as actual hours worked.

Under Section (B), if the employee is required to report to work a second time in any one workday and is furnished less than two hours of work on the second reporting, he or she must be paid for 2 hours at his or her regular rate of pay.

See also, Aleman v. Airtouch Cellular, 202 Cal.App.4th 117 (2011), in which the court held that if an employee's only scheduled work for the day is a mandatory meeting of one and a half hours, that is prescheduled well in advance (say 4 days) and the employee works a total of one hour because the meeting ends a half hour early, the employee is entitled to 1 hour of pay and the employer is NOT required to pay "reporting time pay" pursuant to subdivision 5(A) of the Industrial Welfare Commission Wage Orders.

It should be noted, however, that employees on "paid stand by time" who are called to work at a time other than their scheduled reporting time are not entitled to additional reporting time pay.

For more information on employment law, see Primer on California Wages, Overtime Pay and Employee Benefit Laws.

© 2012 Melissa C. Marsh. All Rights Reserved.

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