Labor & Employment Law

Class Action Focuses On Unpaid On-Call Time: A Sleeping Giant?

By Mark E. Tabakman, Esq.

The issue of what constitutes working time is a gray one for employers.  Especially murky is the question of when on-call time, i.e. waiting time, should be compensated.  In a significant development, in a class action case entitled Green v ATT, filed in the Southern District of California ATT has been charged with depriving its information technology staff of overtime wages for on call hours, which are now claimed as working time.

The employees claim they had to be constantly on call, so they could respond to and fix, e.g. troubleshoot, a wide range of problems associated with the computer systems.  The suit alleges that the 'employees were placed onto standby, on-call but were not paid the required compensation for these hours worked, regular and/or overtime during the class period.'

One of the downfalls of an employer on-call policy, meaning that all of the on-call hours are converted into working time, is requiring employees to respond in a very tight window.  The allegations herein are that ATT required the affected employees to respond within 15 minutes to a call-in; they were on call twenty-four hours per day, seven days a week.  This was above and beyond the 'usual' forty-hour week.

The other component of a bona fide on-call policy is that the employees must be able to pursue their leisure activities, their 'lives' in a manner not unduly restricted by the policy.  The employees (naturally) alleged that this was an overly restrictive policy and they unable to enjoy any leisure activities or engage in their own pursuits.  Therefore, they seek to be compensated.

The plaintiff seeks class certification.  Of equal, if not more, concern is that the plaintiff is asking the court to create a 'fluid fund' so that the alleged violator can deposit funds for restitution and back pay purposes.

Examine your on-call policies. If the response time is less than thirty minutes and/or if there are other conditions that may be argued as 'unduly restrictive' you may need to revise the policy or practice. In the AT&T case, computing the potential damages, i.e. on call pay at hourly and overtime rates for hundreds of employees, for thousands of twenty-four hour days sounds staggering just to contemplate and will be even more frightening to actually undertake.
 

Full post as published by Wage & Hour - Development & Highlights on August 19, 2009 (boomark / email).