The Mailbag.

• Author: Davenport, Anniken

Paying employees for on-call emergency duty

Q We are a maintenance and construction company. Our employees are on-call for emergency repairs from 4:30 p.m.-7:00 a.m. When they work, they are paid a flat rate of $400. They go on calls on a volunteer basis and are allowed to decide whenever they want to be taken off the on-call list. Employees are free to swap these voluntary shifts with one another. Once a call is verified as a true emergency, they typically have one to three hours to respond. They clock in when they leave their home and clock out when they return from the call. When not responding to calls, employees are free to engage in personal activities. The number of calls fluctuates, but they generally receive one or two calls every two weeks. My question: Is the on-call time considered hours worked, and should they get paid at least the minimum wage? And are the employees under restrictive or non-restrictive call/standby? -- Cecilia, California

1. California's wage-and-hour rules sometimes differ from those under the federal Fair Labor Standards Act. The state's Division of Labor Standards Enforcement has guidance available online at www.dir.ca.gov/dlse/callbackandstandbytime.pdf. The relevant section appears to be:

Whether on-call or standby time off the work site is considered compensable must be determined by looking at the restrictions placed on the employee. A variety of factors are considered in determining whether the employer-imposed restrictions turn the on-call time into compensable "hours worked." These factors, set out in a federal case, Berry v. County of Sonoma (1994) 30 F.3d 1174, include whether there are excessive geographic restrictions on the employee's movements; whether the frequency of calls is unduly restrictive; whether a fixed time limit for response is unduly restrictive; whether the on-call employee can easily trade his or her on-call responsibilities with another...