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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?
Here's the way I see it. Mr. Lawyer, you want to pay for support 40 hours a week? I'll give you a cellphone number I'll answer 40 hours a week.
It is ridiculous to presume that offering the opportunity to interrupt one's life at any time, any place, with an overriding obligation to deal with your problems, has no value.
Oh, you want the 168 hour phone number? Well, that's gonna cost ya...
I've fallen off your lawn, and I can't get up.
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.
Well, the firefighter mentioned is flawed - he is *at work* waiting for a call to come in. On call is not at work, but available should the shit hit the fan.
The hospitals I worked in, the staff that were on call (CAT scan techs, nuke med techs, OR nurses, recovery room nurses, dialysis folks) were paid $1 or $2 per hour just for carrying the beeper. Should they get called in, they were guaranteed 2 hours of pay, but they had to stay waiting for something to do for that whole time (a CT tech could come in and scan someone in 10 min - but they then had to hang out and wait for the extra hour and 50 minutes). This pay was at regular pay rates/levels, so night shift differential or holiday differential kicked in, as would over time if their total for the pay week was over 40 hours.
So... followign this, our poor over worked web master would be paid say $1/hr for totin his beeper or whatever. If he gets called, he comes in and fixes the issue, gets a minimum of 2 hours of work at his hourly rate, and probably gets over time. Sounds good. In reality, he's probably a salaried employee, so over time is out the window, and if he's lucky he may be allowed to leave 15 minutes early on Friday to make up for it.
Don't blame me, I voted for Kodos
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.
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.
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.
Beware of bugs in the above code; I have only proved it correct, not tried it.