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Should You Be Paid For Being On Call?
theodp writes "Fortune's Dear Annie takes on the case of poor Dazed and Confused, an independent webmaster who's expected to be on call for his client at all hours of the day and night, but doesn't get paid for being on call, only for the 40 hours a week that he's in the office. Surprisingly, Annie throws cold water on the contractor's dreams of paid OT, citing these pearls of wisdom from an attorney who's apparently never had the 'privilege' of being a techie on call: 'Many companies see the on-call issue as analogous to a fire fighter's job. Most of the time, a fire fighter is off-duty but on call, hanging around the firehouse, cooking, sleeping, or whatever. What that person really gets paid for is the relatively small, but crucial, amount of time he spends walking into a burning building with an ax. A webmaster, likewise, has slow times and busy times.'" What on call policies are you used to working with and how should it work in an ideal world?
You're basically hooked to a pager, which means you need to be near a phone, and usually near a computer with internet connectivity.
I don't work in operations, but everyone in decent places I've worked at did get paid around 3hours of salary per 24hours of wearing the pager. Then it was a minimum of 1 hour per "call" (more like issue, as it could involve multiple calls) except for the first one of the day which was included in the 3hours.
That meant that in a typical week you'd get paid for (24*7)-40 hours of "pager duty", which amounted to 16 hours of salary, so 2 days extra. That's pretty good, assuming you're on a decent rotation and don't have to be THE guy doing it every single week.
Firefighters) run shifts, they are only ever on call when they are at the station, which they have two 12 hour day shifts, two 12 hour night shifts, and then 4 days off. Pretty fair working conditions if you ask me. No 40 hours in at the station, and then an expectation that they will get up at 3 o'clock in the morning cos Mrs Jones' left a candle burning and the cat knocked it over. Maybe Mr Lawyer need's to check who he is comparing with before he accidentally agrees that 24/7 is unfair.
'Many companies see the on-call issue as analogous to a fire fighter's job. Most of the time, a fire fighter is off-duty but on call, hanging around the firehouse, cooking, sleeping, or whatever. What that person really gets paid for is the relatively small, but crucial, amount of time he spends walking into a burning building with an ax.
This is flawed, as in many fire departments or houses there are multiple crews. You've got 3 days 'in the house' then 3 days 'at home' followed by '4 days in the house' then 4 days 'at home.' When you're in the house, you're responsible for any and all calls that come in. So firefighters get paid for the time they are in the house. Just like most people are paid for the time they are in the office, but aren't paid for Saturdays and Sundays.
If he wants to correct the analogy, he should say that firefighters who are in the 'at home' phase, get called in, but don't get paid for it. They do get paid for it, just like Police Officers that work overtime or off-shift.
I've done a lot of independant contractor work and I've hired dozens of contractors, so I'll put my two cents in.
As a independent contractor he gets to choose if he wants to work or not. If he wants to go out of town then go for it, but if they call and you're not available they're going to get someone else. You're not "on call", they just let you know "hey we have some work here if you want it, if not no problem".
Being an independant contracotr for a business just means you are someone they know with a particular skill and they will let you know when they need your expertise in the future. It's the job equivalent of "fuck buddy".
If he got paid for being "on call" as a independent contractor then we'd all have to pay plumbers, lawn mowing guy, electrician, mechanics, and all the other "use you when I need you" people in our lives for being "on call".
my karma will be here long after I'm gone
100 percent of wrong. Firefighters are not off-duty when they are on-call. They are on-duty. When they go off-duty, they are no longer on call. Firefighters are typically on-duty for a 24-hour shift for two or three days a week. On their off days, they are not on call. Thus, most of the time, a firefighter is NOT on call.
As a swede (who is a union member) I'd like to give my opinion on this.
Suppress wages
Not really, they generally only demand guaranteed minimum raises (which are normally just a little over inflation) and minimum pay dependent on the field people work in. So they don't really suppress wages, they just make sure employers don't try to stick their employees with miserably low pay, and that employers are forced to give out raises that at least match inflation.
defend the inept
Most of the legal action I've seen from unions has been against employers who have insisted on 15 year-old 15" CRT monitors being ergonomically equivalent to new TFT monitors, that employees should come in to work ten minutes early without pay and similar silliness that affects "all" employees ("all" with quotation marks because obviously management has brand-spanking-new 24" TFT monitors because the old CRTs would somehow hamper their ability to work efficiently even though they're perfectly fine for everyone else) or individual cases where an employer wrongfully fired someone and the union offered legal assistance.
petty crap during "bargaining" years
Ah, but the employers are even worse in this regard, nothing like moving assets out of one daughter company with a lot of employees into another daughter company just so you can say the business division is doing poorly and can't afford respectable raises for the employees.
strong arming members
Never heard of this, sometimes individual union representatives can have some wonky demands on employers though, although the only times I've heard of this have involved employers who were notorious for always trying to "bend" labor laws so there was a clear power struggle between the employer and the union to begin with.
and take money away for political purposes.
There are definitely a few unions that do this, they're mostly the classic big "social democrat" unions like LO who have a historic connection to various political parties though.
I'm glad that I'm a union member, it has saved my ass a few times when employers have tried various bullshit.
/Mikael
Greylisting is to SMTP as NAT is to IPv4
Heh, like they'd stay otherwise.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
For independent contractors or freelancers, a more comparable model might be the Freelancer's Union or an entertainment guild/mutual aid association like yours truly's union.
Both use collective bargaining to obtain health benefits and provide common resume writing/promotion/education/development services; the latter is a proper union has wage/working condition bargaining power by having a master agreement with all employers in a jurisdiction.
A union of freelancers is workable, and is the SOP in the film/television industry, when union benefits are made "portable" from job to job. In this case then the union's main job is to provide continuity of benefits, so I don't end up having six 401k's all over Los Angeles and paying COBRA one month out of every five.
Don't blame me, I voted for Baltar.
Read history. Unions occurred when the oligarchs had all the power and the workers (often as young as 8) were little better than slaves working 7/16 with no benefits. Fast forward to the 90s. IT talent is scarce so they can't get away with this. Fast forward to about 20 seconds past the dot com crash. Threatened with wage arbitrage (i.e. outsourcing), IT personnel get hooked to pagers 24/7. Collar and leash optional.
Unions work in other countries like Sweden and Japan. Unfounded claims to the contrary, we're nobody special and they can work here too.
Is there abuse in unions? You bet. Is there abuse without unions? You bet.
Bottom line? If you don't push back, you get pushed to the wall, and asked to bend over.
Please do not read this sig. Thank you.
My experience with lawyers has been that they expect a big fat retainer up front, and then they want to be paid more if they go beyond the scope of the initial retainer. Lawyers don't work on open ended commitments akin to keeping a website up and running in perpetuity. If we weren't talking about a lawyer here, I would say that I don't believe the gall of that woman. But since she is a lawyer, I expect her to be hypocritical and two-faced.
Lawyers nickel and dime clients to death. They charge for photocopies. They charge for drive time to and from court. They expense every single little thing that they can. For a lawyer to tell a webmaster that he is in the wrong for expecting some compensation for time spent after hours working on a website is ridiculous. Lawyers won't even talk to most people about legal matters unless they are getting paid to do it.
If you get Saturday AND Sunday off then you benefited from a union. If you have some expectation of getting paid more for working more than 40 hours then you benefited from a union. Unions have to reinvent themselves to be more relevant in today's market place - but most of you that have a full time job benefit from labor unions.
All generalizations are false, including this one. Mark Twain
I've worked On-Call shifts with a number of companies before.
Here's the deal:
The FLSA [Fair Labor Standards Act] regulations provide that "[a]n employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes" is considered to be "working." 29 C.F.R. [section] 785.17
It is against the law for a on-call person to be paid salary. They are non-exempt employees by definition. Any time spent fulfilling required job duties outside of the office must be compensated. Overtime pay scales may or may not apply by job description.
Since a home system, paid for at least in part by an employer, including compensated phone/internet bills and job requirements to maintain a home computer for work purposes (or a provided corporate computer for use at home, including rotated on-call hardware shared by several people) is an extension of the office and the duties of the job, that home system is essentially ruled by the courts to BE the office when on-call. Anytime an employer requires an on-call person to remain in their home, or in proximity to a computer system and to carry and answer a phone routed by the company at specific hours, then that person, under the FLSA, is in fact WORKING. The rate they're paid for that time spent "waiting" for a call may be billed at varying rates, but generally not less than 50% of regular pay, and any time actually on a call would be bileld at the standard rate for that employee (or overtime rate if it applies). Many companies pay a base "convenience" wage to people who are on call but take no calls during that time.
The Supreme Court, in previous rulings, has also concurred. If you are bound to a location, unable to leave and persue personal activities (say, go to a movie, go out to dinner across town, play video games online, go shopping at something other than a local grocery store, etc), or are mandated to be at a computer to handle calls within X minutes of a notice of an alert (the "you can do whatever you want, but you only have 30 minutes to answer a page" idea), then you are essentially work bound, and not free to use your time at your own lesiure. For example, if while on-call, you could go spend a weekend at your parents, so long as you answer calls per company policy, and meet SLAs for handling issues, they you are only required to be paid while actually working, but if that company required you to stay "within 15 minutes of a connected computer at all times while on-call" then you are work bound, and must be compensated at at least a base acceptible rate during that time, including time-and-a-half as mandated for hours over 40.
For example, at one of my employers, all i was required to do was return a paged call within 30 minutes. once the call was returned, it took about 5 minutes to determine what the issue was, but we had a 4 hour response SLA, so you could tell a customer, "I'm on call, and not at home, I'll call you back in 2 hours..." and that was acceptible. We were only paid for time actually logged on calls (rounded to the nearest hour). At another job, The 1 week a month you were on call, you were expected to keep a quiet household, be at home at all times aside from quick errands, and if you got a call, it had to be answered immediately, and you had to be logged in within 20 minutes of the call. We were paid 50% time for all hours "on call" except meals and sleeping and 100% time on calls (and time and a half as it applied only to time on calls).
Further, in many states (including this one), even if only billable when actually on a call, it is illegal to be paid for less than 3 hours in any 24 hour period, regardless of the number of hours worked. It's also illegal to be compensated for less than 1 hour for any block of time spent working that is more than 1 hour apart from another billable hour. For example: on Sunday, you get a call at 10AM that lasts 30 minutes. You get another call at 3PM that lasts only 15 minutes. They have to pay yo
There is no contest in life for which the unprepared have the advantage.
No need for a union. Simply:
1) get written confirmation from your boss you are not elligible for overtime and on-call pay. Show him a copy of the FLSA related to on-call work and have them explain why they fee it does not apply to your position.
2) work as long as you feel you'de like to for that firm.
3) at some point later, present a copy of the FLSA 29 CFR 17 defining on-call pay requirements, having this notorized by a lawyer is nice too. Even an anonymous call to the labor board in your state may also work so you can remain anonymous and reap the benefits without job loss.
4) take large settlement check for all logged time (at time and a half at least, plus additional compensation as best as you can negotiate).
4a) if company offers your continued employment, great, if not, you have a real nice paycheck, plus back pay
4b) if check not offered, sue, you'll be due at least 3 times the back pay at time and a half, plus all your legal fees. It's a cut and dry case, you'll be compensated additionally for time lost, and likely will never appear in court.
Here's the conditions outlined in the FLSA regarding who should be paid for on-call waiting time (on call actual time on a call helping someone is assumed you'll be paid for, this is the "sitting around" time you should also be paid for...):
--Geography. How far can an on-call worker stray from the jobsite? The more restricted he or she is, the more likely it is that on-call time is compensable. Before cell phones and pagers, on-call people often had to be at home, by the phone. Now they can be anywhere, so the issue is less clear. That often brings it down to a matter of
--Response Time. How long a time do you allow for on-call people to respond? That frequently spells how far away they can be. If you demand the person be on-site in 10 minutes, says Jorgensen, the time is likely to be compensable. If it’s 60 minutes, he believes the opposite is true.
--Call Frequency. How often is the person actually called? In one court case, Jorgensen reports, an employee called three to five times a day was ruled to be working and had to be paid. In another case, one called six times in a year was not deemed so.
--Uniqueness. A fourth factor relates to how many of your workers can do the needed work. If there’s a pool of employees available, and employees can trade off the on-call responsibility, there’s less evidence that any one of them is restricted personally.
--Alcohol restrictions. If the company requires you to remain sober during on-call time, likely you qualify for pay during the entire time.
Other things that may factor in regionally or at the state level:
- additional compensation for interrupted meals, including at the least pay for the intire time of the meal plus the interruption, and potentially fair compensation for the cost of the meal.
- minimum 5 hours uninterupted rest clause. Get woken up at 3AM after going to sleep at 11PM. Have to be at work at 8AM next day, so you get up at 5:30. You did not get 5 hours uninterupted, so you must be paid the ENTIRE 8 HOURS OF SLEEP as if you were awake/
- no alternate compensation: can't be compensated with comp time, only payroll. In states where comp-time is approved comensation for on-call work, that must be at 150% the comp rate (equiv of overtime compensation pay). Further, an employer in most states can not make you leave early because you worked late the night before, nor cut your hours to below your average work week in order to avoid overtime.
- OSHA and other FLSA regulations on max time allowable at work in a 24 hour period (varies by job title as well, for instance emergency worker, driver, etc).
There is no contest in life for which the unprepared have the advantage.
An independent contractor who has only 1 customer is by law considered an employee. If you're provided a desk, equipment of any kind, security access as an employee is (doesn't have to sign in, etc), is issued commands and job tasks by management, averages over 36 hours per week over a 3 month period or longer, has a dedicated manager, is expected to show up and work regular hours, etc, then the contractor is simply an employee who chooses to not accept HR to process their tax paperwork. In fact, in many states, it is ILLEGAL to have an "independent contractor" not be on the books if at any time their contract is open ended or not related to a specific task with a defined completion date. If he's there ofr a "contract job" where the job ends given a sety of conditions, and where he's the only one doing the work (not part of a team of other full time contractors), then he may very well be a contractor, but then he's got the power to negotiate or walk away as well, and should have a business contract with them, and not have filled out an employment application...
I had an employer try to pull this BS in CT. He thought it would be a great idea to fire us all, hire us back at a 10% pay raise, but save all the benefits, vacation, Social security and HR costs, etc. he saved about $300/week per each of us, and we got $50-100 more... Come tax time, we found out the hard way that just because an employer doesn't pay your matching SS costs and medicare, that does NOT mean it does not have to get paid... i had a $4K tax debt to deal with under this arrangement.
We spoke to a lawyer, and the state department of labor, and the guy got fined big time, and we each got the back pay X3, our tax debt reassigned to his firm, and 10% of what they took out of his ass for reporting him. During the process, he terminated us all instantly, so we also got compensation for unlawful termination and loss of work pay (plus unemployment on top). They also found out he'd been doing this for YEARS in cycles, and got him for a few hundred grand in unpaid taxes, and last I heard he was still serving a 9 year prison sentence for tax evasion (he tried to move all the money and the house to relative's accounts so they could not put leans on it when he refused to pay up). They took everything he had, business home and cars.
Contractors by definition can not be on salary. If you;re buddy is only paid 40 hours as a contractor, he needs to send them a bill and threaten to send a copy to the labor board and the attorney general of the state. Have him tell them he wants time and a half back pay, plus time and a half vacation compensation, plus $300 per payroll period in leiu of stiffer fines from the government, and give them a copy of the FLSA sections refering to the definitions of contractor and employee.
There is no contest in life for which the unprepared have the advantage.
I call BS (or at the very least - you didn't know the whole story) - I have an IT friend (who is union) at D9 who collected evidence (in the form of proxy logs and security footage) in Southern Oregon where they fired a union janitor for just browsing regular porn on a teacher workstation. It was against the rules, they had evidence and they got rid of him - simple as that.
The union did nothing to stop management from taking that action. Now if they wanted to fire him for that reason, but had no evidence - I can see the union stepping in because yes - that would be a management abuse.
How many non union shops have you worked for where when layoffs came the managers, managers buddies, managers college friends (who they hired to collect direct deposit paychecks and nothing else) all kept their jobs, but the technicians and IT people all got cut? I've seen that too many times to count. Not saying this wouldn't happen in a union shop, but really - who's inept here?
My father and mother were both teachers in Oregon for all their working lives and have never dealt with any of the things you describe above.
Unions after all are what you make them - it sounds like you belonged to a group of criminals instead of a group of educators wanting to collectively bargain for better employment conditions.
And as an American in IT working at a unionized plant (I'm not in the union, but I write programs to do scheduling and such based on their ridiculously complicated seniority rules), let me give the other side of the story.
Yeah, this really happens several different ways. First and most obviously, they surpress the wages of the competent. There are people at our plant who are awesome workers who deserve more pay, and lazy people who should be fired and paid nothing at all. But firing is almost impossible, and the union insists everyone gets paid on the same scale. So the people who are as lazy as a pet coon make more than they are worth, and the competent people subsidize this by being paid less. Also, the minute workers unionize, management has to start playing heavy defense and trying as hard as they can to not give raises. Why? Because if they give raises and then have a bad year as a company (such as Chrysler and GM), the union won't take a pay cut, and they may go bankrupt. Every company who has watched the UAW over the years intuitively understands this, so they work hard at not giving an inch even in good times... thus depressing wages. My unionized plant is actually paid less than our non-unionized plants, so it really can happen that way.
Happens constantly. My father in law (a union member) quit his job as a union steward because he was sick of defending people who were in the wrong. At my plant it's the same way. Most grievances are filed by inept workers with a sense of entitlement. Likewise, most of the times management tries to fire inept workers, they can't, because the union defends them tooth and nail. We busted one guy repeatedly for spending hours looking at porn at work, and he kept getting defended. The only way we got him out was by essentially plea-bargaining him: you agree to resign, and we won't make public what you did, so your family won't find out. Otherwise, we couldn't have gotten rid of him, because the contract says you can only be fired if you commit the same offense twice in a six month period, and he was doing it outside the six month window (or at least that's how often we were catching him).
Happens all the time during bargaining, although to be fair both sides are petty. In my plant, both the union and the management hated a certain seniority rule, but neither wanted to negotiate or change it because "once it's gone we might not be able to get the rule back if we ever want it in the future." So you keep it (and fight over it) even though both sides agree it's stupid.
This has never been more true than under the current US administration. The unions are pushing for two new rules. The first is card check, which allows unions to organize based on a check of who is carrying cards, rather than having a formal vote in which both union and management make their case, and then the members vote. In fact, you don't even have to have a majority to unionize under this! And look at the "employee free choice act" rule change: it takes away the right to a secret ballot and makes people vote publicly for and against the union. That way everyone knows who didn't vote for the union, and coercion can take place. Both of these rules are strong arm tactics that do not benefit employees, and taking away a secret ballot or organizing without a vote or even a majority are all totally un-American.
Every union I know of takes dues from its members and spends them to fund the Democratic party. Big Labor is pretty much a wholly owned subsidiary of the Democratic party, and everyone knows it. My father in law sees his dues spent to elect Democrats every year, even though he votes Republican. But that's how unions operate... just like some companies (cough GE cough) try to get in bed with government and carve out monopolies and policies in their favor, Big Labor does the same. They are all about increasing their size, financial and power bases.
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