Q. I need to be ”on-call” for my job at a retail store in the mall where I am an associate. I have to call in two hours before I am scheduled to see if I have to work. I get paid hourly, but I don’t get paid for being on-call. Other people I know do get paid for being on-call. Are there different kinds of on-call or am I being shortchanged?
A. As with many questions dealing with compensation, it depends. To sort out the complexity around your question, I consulted with Todd Bennett, partner at Bennett and Belfort, a boutique employment and business litigation firm in Cambridge.
Wage and hour disputes offer challenges for employers and employees as so many situations sound similar, but have very different outcomes. In this instance Bennett notes, “There are two important factors to consider in determining if an employer must pay an employee for being on-call.”
In Massachusetts, an on-call employee who is not required to be at the work site, is free to use his or her time for his or her own purposes and is not considered to be working while on call is not entitled to be paid. It is important to understand that this is a two part test to determine if on-call time is paid time. If the employee answers “no” to either part of the test, then the employee should be paid her hourly wage.
To answer the first part of the test, ”Is the employee away from the job site while on call?” Sarah Amundson, a JD and associate at Bennett and Belfort explains, ”If the answer is ‘no,’ the employee is not away from the job site, then the employee must be paid.” For example, a delivery person who reads a book, or surfs the internet, while waiting for delivery assignments should be paid his or her regular hourly rate, as should a hospital worker who watches TV while waiting in an on-call room.
If the employee is away from the job site, then proceed to the second part of the test. “Is the employee effectively free to use her time for her own purposes?” If the answer is ‘no,’ then the employee must be paid. If ‘yes,’ then the employee is not required to be paid.
The two part test can be difficult to apply and there are a number of factors courts will consider. Factors include how often the employee is called on to perform work, the expected time it takes the employee to respond to and from the job assignment, the length of the on-call shift (the longer the shift, the more inconvenient for the worker and the more likely it is that the worker must be paid) and any geographic limitations imposed by the employer.
For example, a building maintenance worker who must be accessible by phone, who receives an average of five calls per on-call shift and must stay within a specified distance of the building in order to respond within 10 minutes, would probably need to be paid for that on-call time.
Based upon the two part test above, your situation as an hourly, retail employee who is required to call in from home two hours before being asked to report to work, would not entitle you to be paid for the on-call time. This is because you are 1.) away from the job site; and 2.) free to use your time for your own purposes while on-call.
Elaine Varelas, Managing Partner, Keystone Partners