How Much Control Is Too Much Control? When On-Call Time Becomes “Hours Worked”


By: Allison L. Shrallow

Recently, the California Supreme Court provided guidance on an important question in employment law: How much employer control turns on-call time into “hours worked?”  In enacting its on-call policy, an employer must determine whether it is required to pay its employee for the entire time he is on-call or whether it is lawful to compensate him only for his time spent responding to calls.  Whether or not on-call time constitutes “hours worked” has significant economic implications for businesses because on-call shifts typically follow an employee’s regular eight hour shift, and, if deemed hours worked, requires the employer to pay the employee overtime wages at a rate of time and a half for each hour the employee remains on-call.

In Mendiola v. CPS Security Solutions, the Court held employers who require their employees to stay overnight at the employer’s premises during their on-call shift must compensate their employees for the entire time the employees remain on-call.  In this case, while on-call, the employees were required to reside on the worksite in an employer-provided trailer and were obligated to respond—immediately and in uniform—to suspicious activity.  Employees could leave the worksite only if another employee relieved them and had to return to the worksite within 30 minutes.  This case represents one end of the spectrum.

At the other end of the spectrum is Gomez v. Lincare, Inc., where the court found the employees’ ability to engage in personal activities was not unduly restricted when the employer required them to respond to 50 pages a week, telephonically within 30 minutes, or if the matter could not be resolved over the phone, in-person within two hours.

These cases demonstrate courts are not inclined to expand the definition of “hours worked” unless the employee is restrained from leaving the premises or is unduly restricted from engaging in personal activities while on-call.  The question is where does the line get drawn?  Below are some general guidelines for employers to follow in enacting their on-call policies to decrease the likelihood of the time being construed as “hours worked.”

Employers should provide employees with at least 30 minutes to respond to calls via cell phone, although, according to a Ninth Circuit case applying federal law, a 15 minute telephone response time may not be deemed unduly restrictive. If an in-person visit is necessary, employees should be given as much time as possible to respond, as the further employees can travel while on-call, the less the time looks like “hours worked.”  Finally, employers should try to have as many employees on-call during a particular shift as possible so no one employee is overburdened with a high frequency of calls and to allow employees to easily trade on-call shifts.

The dearth of California case law on this subject leaves a lot of questions unanswered in determining how much employer control turns on-call time into hours worked. Of course, a trier of fact would likely find a policy requiring employees to respond in-person within 30 minutes to be unduly restrictive, as it would preclude employees from engaging in most personal activities, including dining at a restaurant.  However, it’s more difficult to predict whether, for example, a 45 to 90 minute in-person response time would be considered unduly restrictive.  Therefore, in instances where the employer does not require its employees to reside on-premises but, because of the nature of its business, requires its employees to respond immediately by phone to a high frequency of calls and/or in-person in less than two hours, the employer should consider erring on the side of caution and compensating its employees for on-call time.