On-Call Pay Basics for California
Navigating California’s wage and hour laws is a crucial responsibility for employers in the state. It is therefore important to understand California’s on-call pay laws as most employers have workers that are expected to be "on-call" at times; however, like much of California employment law, it is nuanced.
On-call pay, sometimes referred to as standby pay or call-in pay, is the compensation paid to employees who are contacted by their employer outside of normal work hours. An employee is generally considered to be on-call if he or she is expected to be available for work, but not necessarily working at all times. Basic U.S. Department of Labor rules state that employees who are allowed to leave their jobs and return, when needed, are considered "on call" and need only be paid for whatever time they are actually performing work. However, in some jurisdictions, such as California, the law is very different and even more favorable to employees.
For California employers, on-call work has a very specific legal meaning. It refers to situations in which an employer requires and/or expects an employee to be available for work when needed . Employers in California must pay employees at least minimum wage and overtime for all hours worked. Additionally, under certain circumstances, with respect to "non-exempt" employees, they may be entitled to "reporting time pay" for less than a full shift of work performed.
Reporting time pay is an additional form of compensation required by Labor Code section 558. For non-exempt employees who report to work and are not provided with at least half of their usual or scheduled day’s work, reporting time pay applies. California Labor Code ยง 558. The amount depends on how much of the shift the employee missed. The following chart shows when and how much pay is owed:
The reporting time rule is intended to protect workers from being called into work, and then being sent home quickly after. For example, under these rules, an employee usually gets 4 hours of pay if he reports to work for a quick meeting, but then is being sent home. For exempt employees, there is no reporting time pay. Again, there are exceptions to the general rule, such as employees whose hours are "irregular," including employees who do remote work or travel.
Key Terms and Definitions
The law generally requires a determination as to whether the employee is on "standby time" or is "waiting time." The FLSA generally draws a distinction between "on-call" and "waiting time." "On-call time" is that period of time during which an employee is required either to remain on the employer’s premises or so close thereto that he or she is unable to use this time effectively for his or her own purposes. "Waiting time" has been held to mean a period during which an employee, while being required to remain on the employer’s premises, is not restricted so far as to be unable to use the time effectively for his or her own purposes. California courts have delineated the difference between "on-call time" and "waiting time" in similar terms. "On-call status" triggers the employer’s obligation to prepare a schedule with actual dates and times of shift assignments that the employee will be required to report to work. "Standby time" requires an employee to remain accessible without significant restrictions on personal activities. "Waiting time," on the other hand, restricts an employee so much that he or she cannot effectively use the time for personal purposes. In either circumstance, that is, whether the employee is on-call or whether the employee is on standby or waiting time, the California Supreme Court has held that the employee is owed reporting time pay for the first period of no less than two (2) hours and no more than four (4) hours of work. Note, however, that an employee is only owed reporting time pay if he or she is not provided with notice at least fifty percent (50%) of the way into the shift. Any work performed by the employee in the interim will render the employee whole and prevent recovery of any unworked hours. The bottom line is that to avoid any potential liability, California employers are strongly encouraged to declare physically set schedules in writing (and post if possible) so all employees receive notice of their work schedules.
Mandatory On-Call Pay Requirements
Determining "on-call" pay for employees in California requires employers to understand the difference between California and federal law, as California has far more detailed requirements. Federal regulations generally require that employers pay employees "waiting time" pay at the employees’ standard rates of pay, $7.25 per hour, for shifts of 24 hours or less. There is no federal law on the details of "on-call" pay that requires a specified level above the federal minimum wage.
In contrast, when an employer requires an employee to remain "on-call" while not at the workplace, then the employer must pay the employee at least half of his/her hourly rate of pay for every hour or portion thereof the employee is required to remain on-call. For example, if an employee is required to remain on call from 1:00 p.m. to 4:00 p.m. a one hour shift, the employer would be obligated to pay the employee at least 50% of either the plaintif’s regular hourly rate or $13.00 ($25.00/2), even though the employee is not physically required to be at work and is otherwise free to engage in her own activities. For employees paid at piece rate, such as truck drivers paid based on mileage driven, or by commission, the law states that employers must provide a guaranteed minimum payment for each hour or portion thereof that the employee is required to remain on-call, which is set at either $5.00 per hour or the minimum wage for that locality, whichever is greater.
Notably, an employee may not waive this right by agreement, such as through contract or union collective bargaining agreement, as it is non-waivable under California law. Courts have held that sending an employee home while still requiring them to be easily contacted and waiting to return to work does not absolve the employer of the duty to pay on-call compensation. This gives rise to a potential liability issue because California law explicitly states that an employee cannot waive a greater right to wages under any local ordinance. Whether on-call wages are considered wages or part of an employee’s hourly rate is an issue still left to the courts.
If the employee is required to physically report to the workplace while on-call, then he or she is entitled to the minimum wage and rest and meal periods. This is also true for on-call shifts during which the employee is physically required to remain at the workplace or be paid for any time spent performing personal activities, taking breaks, or consuming meals, such that the employee is not free to engage in a personal activity.
For an employee who is required to be on-call and to respond immediately, such reasonableness would be swept aside, and his or her on-call wages would be paid according to the above mentioned rates at the employers’ risk.
Despite the complications that the above create, there are a number of factors that may mitigate an employer’s exposure to on-call claims.
Exceptions and Special Circumstances
Certain industries are exempt from California’s standard on-call laws. If an employee is a member of the exempted industry, the on-call pay requirements do not apply. The following industries are exempt: Firefighters, as well as lifeguards working at public beaches, are paid for being on standby, because their services are critical for public safety, even if it is unlikely that those services will be called upon frequently. Employees in the motion picture industry are exempt from on-call laws, as the majority of their work is of shorter duration and on-call scheduling for these employees is a matter of contract between the employee and employer. Employees who provide untethered security services or security services where the employee must reside on the employer’s property to perform job duties are exempt.
Agricultural harvesters and live poultry catchers are exempt from California’s standard on-call pay requirements. Because workers in these industries are more likely to be in demand during early or late hours or on weekends and holidays than in days or hours of the normal workweek, such workers are expected to be more flexible.
Outside salespeople, independent contractors and union represented workers are also exempt.
Employee Rights and Protections
Employers and employees have rights and obligations under California law:
In the event an employer calls an employee to do on-call work at the workplace, that employee is entitled to compensation if he/she arrives at the workplace. An employee who is under no obligation to come into work, but who chooses to do so despite no work being offered, is not entitled to compensation for fulfilling that choice. If attendance at the workplace is a condition of employment, an employer cannot use refusal to attend as a potential "legitimate ground" for discharging the employee . In addition, California law protects employees from unfair labor practices. That protection includes the right to refuse work at the workplace if the work would endanger health or safety, if the employer is hindering the efforts of employees or their representatives to bargain collectively with the employer, or if the employee engages in protected "concerted activities," such as joining together with other employees to improve the terms and conditions of employment.
California law also protects employees from any kind of discrimination by their employers, and from employer retaliation.
Recent Change in Law or Case Law
In December 2018, the California Court of Appeal held in Ward v. Tilly’s that an employee does not need to actually come to work during an on-call shift in order for it to be compensable as pay "rendered" at the workplace under California law. The case, however, did not address the related question of whether employers must compensate employees for on-call time when they are never called to work during on-call shifts (i.e. when the employee is not required to report to work at all). On July 30, 2020, the California Supreme Court agreed to review a significant decision from the California Court of Appeal, McCaw v. The Superior Court of Los Angeles, that ruled that under California law on-call employees must be compensated for "as many hours of pay as they may lose" at home due to the requirements of their jobs. The Court’s decision in McCaw may clarify the issue and provide much required guidance for employers employing on-call employees.
On-Call Pay Tips and Advice for Employers and Employees
For Employers:
Set an on-call policy in advance. Clearly define under which circumstances an employee might be contacted outside of their regularly scheduled hours and for what reasons such as an emergency to avoid any confusion. Make clear the employee will be paid for any hours worked and they should monitor their time.
Advise employees of their scheduling and obtain verbal confirmation each week. A good practice is to ask an employee to confirm their schedule every week. Sending a reminder text is also a good idea. This could help avoid any issues before the end of the pay period. Moreover, it also ensures the employee is clear on what their work week will look like, which can prevent unscheduled overtime.
Monitor employee’s hours. This will help an employer identify if an employee has been responding to call-outs or messages. The best practice is to see if they are working more than 40 hours in a given week, as the Fair Labor Standards Act (FLSA) does not require an employer to pay for any call-outs or messages that do not result in the employee working. On the other hand, California’s Labor Code requires non-exempt employees be compensated for any time they are subject to the control of their employer; this includes responding to messages or fulfilling requests outside of work.
Keep a log of communications. Generally, an employer should consider keeping a log of communications sent to employees regarding their work schedules. Set internal policies that would allow a third person to monitor the log to verify it is in fact up-to-date.
For Employees:
You do not have to be available at all times. California law does not require an employee to be on-call or available 24/7. Be sure to set boundaries with your employer to avoid working without overtime pay. You cannot work for free. Employees should familiarize themselves with their wage and hour rights granted under federal and state laws and understand their particular roles to determine whether they are exempt or non-exempt employees that are entitled to overtime pay. The Department of Labor provides an easy tool to determine if you are entitled to overtime pay.
Do not respond to any messages from your employer when you are not officially clocked in – unless otherwise agreed upon. If you are an hourly employee, you must be paid for any time spent working for your employer. One way to ensure that compliance is to refuse to check or respond to any communication from your employer when you are not on the clock. If you are a salaried employee with no overtime pay, you may still be entitled to back pay because you are logging hours that are above and beyond expectations.
Conclusion and Additional Resources
In summary, on-call pay laws in California are subject to strict guidelines that both employees and employers must clearly understand to avoid potential litigation or violations of labor laws. Employees have the right to expect compensation if ordered to remain on call, while employers are obliged to fully inform employees of their policies and pay for time they are required to stay on call.
The State of California has a wealth of online resources in the Labor and Workforce Development Agency (LWDA) website to learn more about on-call policies, wage and hour laws, and links to additional resources that may offer assistance to employees who believe they have been denied their rights under California law . The LWDA also offers a direct link to the Department of Industrial Relations Wage Claim Enforcement Unit, and a facility to file a wage claim online.
Legal Aid Foundation of Los Angeles offers access to the rights of workers and other tools that may be of use through Kit for New Workers.
Employers or employees in need of additional advice can seek help through the Department of Industrial Relations, which will investigate the matter, or from an experienced California labor law attorney.