Under California law, employees must be paid for all hours worked. This includes hours for which the employee is subject to the control of the employer and includes all time the employee is “suffered or permitted to work,” whether or not required to do so.
“On-call” or “standby” time at a work site is considered hours worked for which an employee must be compensated even if the employee does nothing but wait for something to happen. As U.S. Supreme Court Justice Robert Jackson explained, “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a standby capacity.”i Therefore, on-call and standby time refer to hours (on or off the worksite) when an employee is not actively performing work but must remain available to do so at the employer’s discretion and direction.
Whether on-call or standby time away from the work site is considered compensable must be determined by looking at the restrictions placed on the employee. Many factors are considered in determining whether an employer-imposed restriction transitions on-call time into compensable “hours worked.” These factors include whether:
- there are excessive geographic restrictions on the employee’s movements;
- the frequency of calls is unduly restrictive;
- a fixed time limit for response is unduly restrictive;
- on-call employee can easily trade their on-call responsibilities with another employee; and
- and to what extent the employee engages in personal activities during on-call periods.
On-call and standby compensable work time can include any period where an employee is subject to the employer’s control. A few examples include:
- Employees told by their supervisor to monitor their cellphone/email after hours on certain dates and be available to help cover a co-worker’s shift or assist if extra workers are needed.
- Requiring maintenance workers during harvest dates to remain at the worksite after normal working hours (cleaning equipment and organizing the maintenance shed) to be able to immediately respond to any equipment-related emergencies.
- A policy requiring at least one IT person to be on-call every weekend and restricting that individual’s geographic location to no more than thirty minutes driving distance from the worksite.
It is important for employers to understand the wage implications of the above scenarios and to train supervisory personnel to recognize the types of directives that can create an on-call or standby situation.