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Applying overtime rules to on-call employees

Confusion over issues such as overtime pay sometimes leads to actions by California employers that violate the Fair Labor Standards Act. Situations may be further complicated when workers perform on-call duties beyond their normal work hours. In one case involving this issue, a nurse working at a health center claimed she was due unpaid OT pay for working weekends on call. She was paid her standard pay rate for working her required on-call weekend hours. However, she contends she was not paid for what she considered overtime during the weekends when she was on call.

What complicates wage and hour claims like this is the fact that on-call workers are sometimes permitted to engage in some personal activities. In this instance, the nurse spent her active work time during her on-call hours visiting patients and performing necessary clerical functions. However, there were times when she was not actively engaged in labor related to her occupation. This was the reason why the healthcare facility characterized her on-call time as non-compensable.

The court took issue with the fact that the nurse's employer had paid her hourly rate for the entire time she was on call as if she had been actively working the entire time. The court ruled that her full hours beyond her 40-hour workweek were also compensable working time; therefore, she was entitled to OT pay. The reasoning was that even when the nurse was not actively performing duties, she was restricted geographically in her movements and limited in what she could do personally because she was expected to be available instantly when contacted.

In situations when there is a failure to compensate, a lawyer may look at things like how an employer treats an employee's status. In the case discussed here, the court noted that the healthcare facility abruptly changed the nurse's position from exempt to non-exempt with no credible explanation. An attorney might also consider contract terms and actions taken with other employees who work OT when attempting to identify possible inconsistencies. Legally, employers are permitted to change an employee's status. However, such actions need to be thoroughly documented and explained.

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