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Littler Mendelson's Julie Dunne
On-call employees are increasingly suing over unpaid restrictions on freedom
May 19, 2009
On-call employees are turning into a growing liability risk for employers, as some are claiming that companies are restricting their freedom too much, and not paying them for it.
Employment lawyers say that such claims are popping up in larger wage-and-hour class actions, with on-call employees suing for unpaid overtime, alleging that their freedom has gotten so limited that they may as well be hourly employees.
In Gomez v. Lincare Inc., a California appellate court recently revived an overtime class action brought by on-call workers of an in-home respiratory services provider. The employees allege that they deserve compensation for the time spent on call dealing with customer questions by phone, as well as for time spent on call but not handling customer inquiries.
In Sweat v. Battelle Memorial Institute, a group of lab technicians in Utah is suing Battelle Memorial Institute, a science and technology development company, alleging that the company required them to be on call during their lunch break, mandating they be on company premises, in company provided clothing and available for work. The plaintiffs claim they should be compensated for that time.
In Walsh v. Apple Inc., a former network engineer for Apple claims that the computer giant failed to pay network support staff members for on-call time.
"It's definitely triggering litigation," employment attorney Julie A. Dunne said of the practice of using on-call employees to keep costs down. "What employers need to do is first of all, take a look at what restrictions they place on on-call time."
Dunne, a San Diego shareholder at the San Francisco-based employment law firm Littler Mendelson, said the key for employers is to make sure they're not overly restricting on-call employees' freedom. Essentially, she said, the less freedom an employee has while on call, the higher the risk that the on-call time qualifies as paid time. "With the way wage-and-hour class actions are filed over issues everyday, if you're not looking at this, a plaintiffs' attorney will be," said Dunne, who is defending a handful of cases alleging unpaid on-call time.
Dunne, meanwhile, advised employers to revisit their on-call policies and consider relevant factors, including geographic restrictions — whether employees are required to be near the office, at home or near a land line; how quickly employees should respond to calls; and how many calls an employee actually receives while on call.
Greg Rasin, a partner at New York's Proskauer Rose, said the trick is to make sure on-call employees have the flexibility to do what they want to do. "If you're on call, and you're free to go to a restaurant or go to a movie, or go play golf or tennis, that's fine," Rasin said. "But if you're told, 'you have to sit in your house and can't leave,' then you have to be paid for that time."
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