Nightmare #2: The "On-Call" Employee

In a recent federal case, a non-exempt employee sued his employer for overtime payments. That, in itself, is not so unusual, but this employee claimed that he was entitled to overtime for the hours he was not working, but was only "on-call." The employer immediately moved to dismiss the case. The court disagreed with the employer, and instead ruled that the employee may well be entitled to the monies sought. The case is now heading for a jury trial (and you can bet that there will be more employees than employers on the jury). Basically, the law in this area requires employers to pay overtime to non-exempt employees who are "on-call," depending upon how "burdensome" the employer's "on-call" procedures are. Some of the issues that are considered include:

• Does the employee carry a beeper or similar device?
• How frequent are the employer's calls, and what is the nature of the employer's demands?
• Does the employee have the ability to maintain a flexible "on-call" schedule?
• Does the employee actually engage in personal activities during "on-call" time?

If a court finds that the employer's "on-call" policies significantly interfere with an employee's personal life, then time spent by the employee while "on-call" will be adjudged to be compensable, legitimate overtime, even if the employee is not actually performing the employer's work. At least one court has ruled that there is a significant interference with an employee's personal life when a frequency of duty-related calls approaches between 3 to 5 calls or pages per day.

Powell, Trachtman, Logan, Carrle & Lombardo, P.C. is a full service law firm with offices in suburban Philadelphia, PA, Harrisburg, PA and Cherry Hill, NJ. Powell Trachtman represents a variety of commercial enterprises, entrepreneurs and business executives in respect to their litigation, litigation avoidance planning, business formation, business transactions, estate and tax planning, and other needs. We are also approved defense counsel for numerous insurance carriers in matters pertaining to professional malpractice, products liability, employment practices, directors and officers liability, and many other fields. For more information, contact us at info@powelltrachtman.com and visit our website at www.powelltrachtman.com.

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