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Help Center - On Call Pay
Question:
1. We have say 2-3 different departments that require a person to be "ON CALL" for the group that generally have to say get called out to customer locations we offer a $15 stipend for any day they are on call. A few other groups that also have people on call who let's say only get called a handful of times are not offered this same $15 stipend. Do you see this as an issue where some are given this and others are not? The argument to offer it to everyone is A: for consistency and B: if your on-call your on-call so even though you can respond remotely you are still responsible for answering the call and/or logging in remotely and solving a quick issue. Of course hourly people are paid for their time where as a salaried/exempt person is not. The $15 stipend was a bonus on top of whatever situation they fell in. Let me know what you think? 2. We also have some people who are being provided with a broadband connection, cell phone, and/or laptop where others are not. 3. When you are on-call at this time you're "expected" to answer etc… I think there is some consideration to of course document our policy on this which is why these questions are coming up, but also we are looking at maybe putting it out there where you are "required" to answer.
Response:
As background and as you are probably aware, for exempt employees, no additional compensation is due for any on-call time -- their weekly salary would encompass any and all additional time worked on nights, weekends, and any on-call time in between. On the other hand, whether you have to pay non-exempt employees for "on call" time spent merely waiting for calls to come in after hours and/or on weekends, etc., is largely a function of whether and how much the employee is under the employer's control during this time. Generally the degree to which an employee is free to engage in personal activities and any agreement between the parties will govern. If the subject employee is NOT required to remain on or near your premises or within a restricted area, and is merely required to carry a cell phone or mobile device, for example, and otherwise can spend the time predominantly for his or her own purpose, then the time is likely considered uncontrolled standby or on-call time and need not be paid by the employer. On the other hand, if the employee is required to remain on call on or near your premises or is otherwise so restricted that he or she cannot use the time effectively for his/her own purposes and if the range is so limited that the employee can not go on about the affairs of his/her personal life, such employee is generally considered to be under the control of the employer during the on-call time. That said, an employer can require employees to "answer" or respond to a call within a specified time frame as part of your on-call policy.
That said, beyond the on-call compensation requirements set forth above, we are not aware of any federal or state law that requires an employer to pay a stipend (keep in mind, however, that this stipend or non-discretionary bonus must be included in overtime compensation for non-exempt employees). If an employer chooses to pay a stipend (or provide broadband, a cellphone and/or a laptop), the employer can elect to provide the stipend (or provide broadband, a cellphone and/or a laptop) to some employees and not others, as long as the basis for such discrimination is not their membership in one or more protected classes. Thus, to the extent the employer "discriminates" against employees on the basis of the department in which they work (though, here, it is unclear on what basis some employees are provided a broadband connection, cellphone and/or laptop, but generally, the same analysis applies as set forth for the stipend), we are not aware of any statutory violation associated with this course of action, because there is no federal or state law that protects employees on the basis of the department in which they work. If, however, either department is homogenous, then if the employer's neutral policy of providing a stipend to the busier group and not the other results in a protected class of workers receiving a less favorable benefit, then the employer's practice could result in a discrimination claim on a disparate impact theory, even if on its face the approach is not otherwise intended to discriminate. For example, if the employees in one department are primarily males whereas the employees in the other department are females, then a policy of providing the stipend to the busier department could result in a claim for unlawful discrimination from the employees in the department who do not enjoy such a benefit. That said, absent a disparate impact, the employer is generally within its rights to choose to provide a stipend to one department and not others because, as previously noted, the department in which an employee works is generally not a protected category under any federal or state employment discrimination law of which we are aware. That said, keep in mind that there be adverse employee relations issues associated with a policy or practice of allowing some employees to enjoy the benefit of a stipend and not others. You may wish to consider unifying the employee's approach to providing a stipend to all employees "on call" company-wide. We recommend that you consult with outside counsel for guidance in developing policies related to on call policies to ensure they meet the objectives of the employer without lowering morale or creating exposure to claims.
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