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Ohio on call and not paid

On Lawyer & Legal » Employment & Labor Law

32,005 words with 23 Comments; publish: Mon, 01 Jan 2007 11:12:00 GMT; (80093.75, « »)

I am aware that in Ohio as many other places the employee does not have to be paid while on call.

My questions has a couple of parts.

History:

I have been employed over 8 years at the same company. When filling out my application I stated that I was not available on Sundays. When they accepted my application and they agreed to hire me, I was told I may have to work a few Saturdays but not all the time. In the last few weeks they have given us a cell phone and stated that we must be available 24/7 on call and respond to the call in 30 minutes or less. If not, we are subject to disciplinary actions up to and including dismissal. If required, we are also to respond to the store and open if needed. If we go into the store on call we are then paid 3 hours for our time. Otherwise we are not compensated at all. We are required to be available to go to the store and open - not allowing us to leave town or be involved in any extra activities that would require a commitment.

Now my questions.

If I am traveling with family in the car and get a call that would require me to respond. What insurance would cover me or my family traveling to the store to open? Am I covered under Worker Comp in the event of an accident or injury resulting from being in transit to the store? I was told it was on my Insurance and that until I reach the store I am not covered under the company insurance.

I also wondered that if I gave stated times on my application or submit required time off from the cell phone that I was not available and not being compensated for, Would I legally be subject to a discipline or wrongful dismissal.

I am involved with outside employment on Sunday to assist in producing Audio & Video for a local church. I have been the entire time of employment but now seem to have to give up my hobbys and employment for a non paying option. I find this really to be an invasion of my time and I know Ohio is an "at will" State. How can this be changed? Who do we have to get to make changes to the total disregard to the employee and the abuse of employers from around the state that explote the "On Call" status.

This subject hits a bad spot with many people in a lot of states. The laws was wrote to protect the worker as well as the employer. I am not sure about this one. I think someone forgot to protect the workers on this one.:mad:

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  • 23 Comments
    • Please correct me if I am wrong, but if you are answering calls, that keep you on the phone for 20 minutes (like trouble shooting for a computer company), wouldn't you be able to collect payment for the 20 minutes, that you were doing your job, even though it was done over the phone. IN other words, if the job can not be done, without him assisting someone, for an undetermined amount of time (depending on the problem), isn't that considered working on the clock? I know computer techs, that charge by the hour, for thier help, and you pay a portion of that hour, if it does not take a whole hour. Please enlighten me, for I do not know the rules on this? What exactly are you dealing with, when you get these calls? What is your job?

      My job was inside sales, due to my knowledge of computers and troubleshooting clients problems related to either software we sell or the clients PC, then it can take a while. I am not paid as a tech. or acknowledged as such, but just the same I am put on the same On Call status. The only reason I feel singled out and abused in this case is because I have a greater knowledge in the field that is usefull to the company. Because of this, I am place on such restrictive Call In type service with no compensation. I have not had a chance to look at the site you sent me. But I will!! just made it in to get my email's and head back out. I deal in many areas of the company beond sales and that is how I got into this position. Knowledge is power unless your the guy that has no life after work. (which it seems, the employers have all the cards when it comes to being employed At Will)

      #1; Wed, 03 Jan 2007 14:02:00 GMT
    • === Original Words ===

      Zman721

      I also wondered that if I gave stated times on my application or submit required time off from the cell phone that I was not available and not being compensated for, Would I legally be subject to a discipline or wrongful dismissal.

      Touchy subject. We ask about availability to work each shift during a week and work hard to honor time off because of school, church or other good reasaons. Should you be asked to work on a day you wanted off, you could be disciplined and, unless you were able to demonstrate that the reason for the dismissal was because you were in a protected class (say, a Muslim who never wants to work on Friday) there would be no wrongful dismissal.

      What are the protected classes or where would I find them?

      If I am not correct let me know. Would the employment application be a written agreement between an employee and employer. If you can be legally let go for falsification on an application why wouldn't also be an agreement of availabilty of time available for them and unless written and modified with agreement by both parties how could that be changed.

      I am not just claiming an every once in a while being called in. This would be an every week 24/7 type demand with a responce of 30 minutes or less. I feel this is an restriction beyond the normal request of an employer.

      Quote:

      === Original Words ===

      Zman721

      This subject hits a bad spot with many people in a lot of states. The laws was wrote to protect the worker as well as the employer. I am not sure about this one. I think someone forgot to protect the workers on this one.

      So, how would you write the laws? How would employers get coverage when they need it? I am all for flexibility in scheduling and have forced an employee, on threat of dismissal, to work only once in the last 15 years, but I don't see how the laws could be changed to accomodate employee personal time AND employer needs at the same time. Both parties have choices.

      I would first put in place a restriction of placing a 24/7 coverage without compensation and like truck drivers in all 50 states place a mandatory 8 hour rest requirment were the employee would be off 8 hours after every 10 hours of work or 12-15 hours work time or being on call. This could be done by hiring more employees and compensating the ones you have. I think most people require rest and to be tied to a phone 24hours a day 7 days a week 365 days a year.

      A doctor or fireman has a limit of time on duty. and then they are off. Granted, a special emergency in there case may required to be called in. could be the same for employees. But that would be on an emergency situation not a call for something the employer could handle.

      Who could put that in legislation?

      Just like Department of Transportation, someone could put it in place for the DOL.

      I have had employees that reported to me.(15 employees) I never put them, or thought of putting them into a situation were they could not sleep in fear of loosing a job because of missing a call or sleeping through it. I put in place safe guards for our business that if it was missed it simply went to the next person or myself because I was bought with a salary and not hourly. Salary gives up those rights and I didn't expect my employees to do something I wasn't willing to do myself. In this situation I am hourly and feel it should be compensated for or increased in pay like salary people are paid a higher rate for giving up that time. This being discussed when they were hired.

      #2; Mon, 01 Jan 2007 18:23:00 GMT
    • No, not a workers comp issue at all, sorry. There are two types of on call situations, if you are required to anwer the phone, they don't have to pay you for it, if you have to go in, they do. I would go out of town, like planned, and then if they call, say sure I will come in, but it will take me 5 hours to drive there, they will probably call someone else in, and you did answer your phone after all. Do you otherwise have specific days off? Do you only work when they call you?
      #3; Mon, 01 Jan 2007 21:07:00 GMT
    • Are you salaried? It may be different if you are. Most of the time, if you are a salaried employee, then you can not get overtime anyhow (which I would imagine, that getting these calls, and answering them, would put you into overtime, if they are compensatable, I know there are other issues, on whether you are doing your salaried position, or not, on whether you get the OT, but that is Elle's, cbg's, Robb71, and Patty's department, I know very little about salaried, non salaried, exempt, non exempt, etc lol! It is worth a call to your states Department of Labor, to lay it on the line, whether they would help you collect extra pay or not. If they can't help, then another job, with a life for you, is on the horizon I am afraid. Keep us posted on how this goes please.

      Well, I not sure about the exempt, non exempt part.. I am 100% hourly with no OT .laborlaw.todaysummary.com. 40 hours a week.

      As we refer to it in our line of work "paid weekly, very weakly") I will call them.. Thanks for the input - Just frustrating. I feel the same about obtaining another job - working on resume as we speak.

      I am all for trying to make money as a business. I just don't believe in over taxing you're employees to make a buck. If you take care of them, they will take care of you.

      I know - the job market is changing - and in some parts of the country if you get a person to show up, on time and work a full shift, you are lucky. here I am putting 40hrs in and the extra 4-8 hours a week on call and nothing extra in pay. I make $15 an hour and it actually breaks down to about $12.50 - 13.64 when you take the 4-8 hours and put it back into it. After taxes & Insurance it is not much at all. At least for working that hard for it. Sad part is, I know people on welfare that end up having more money and a lot more free time. That is another subject and I won't go there on this board.

      Thanks for your time,

      It helps to vent and the advise is good.

      Thanks

      #4; Thu, 04 Jan 2007 14:27:00 GMT
    • My main job isn't volunteering and I get called out of functions all the time for it. I don't stop going to them.

      The only thing that would concern me is that if they issued you the cell phone and the call doesn't go through, then they can not disipline you. Technology does not work that way, even if you tried to be within signal, you won't always get the call. Are you sure they WOULD disipline you for this? They all say they will, but any good employer understands life's issues. And if they don't, it's not illegal, they are just a bad employer and so you move on.

      "The only thing that would concern me is that if they issued you the cell phone and the call doesn't go through, then they cannot discipline you."

      I agree that they should not be able to but if you miss the call (Don't hear it, no signal, or went to voicemail and never rang) Is considered missing the call and is addressed as points away on profit sharing and deduction of pay. To many missed calls and you are terminated. According to the posts above and what I have read in other post's, it is legal... and nothing can be done.

      I would like to bring this oversight of the DOL of this type of abusive use of power to limit the extent of non-compensation and requirements put on employees by some employers. I agree with the other post's that many businesses rely on employees to be ready at a moments notice and how they would not have coverage. Compensation should be given to someone that is "on call" and also time OFF away from the phone should also be granted in some way. Like truck drivers or Full time emergency people have so many hours on and so much time off - away from the phone.

      If you have a business that requires that, Hire more people and charge more for that service to compensate for it. Don't burn employees out by stress of loosing a job and abusing the position they are in.

      Could this be a work related stress of loosing a job because of the phone??

      possibly a workers comp issue?? Just asking?

      #5; Mon, 01 Jan 2007 20:26:00 GMT
    • Please correct me if I am wrong, but if you are answering calls, that keep you on the phone for 20 minutes (like trouble shooting for a computer company), wouldn't you be able to collect payment for the 20 minutes, that you were doing your job, even though it was done over the phone. IN other words, if the job can not be done, without him assisting someone, for an undetermined amount of time (depending on the problem), isn't that considered working on the clock? I know computer techs, that charge by the hour, for thier help, and you pay a portion of that hour, if it does not take a whole hour. Please enlighten me, for I do not know the rules on this? What exactly are you dealing with, when you get these calls? What is your job?
      #6; Wed, 03 Jan 2007 00:43:00 GMT
    • Unfortunately, it is legal to have you be oncall. As long as you are either exempt, or paid for the time you spend actually responding to calls, the DOL is not going to get involved. They don't determine what practices are acceptable, only make sure you are paid appropriately for the duties you do perform.

      I perform by having to answer 20-30 calls a week after hours with no pay and get 3 hours if I travel to the shop. A question was raised today that, what if I would answer each call by going in for every call answered, would I be in my rights to collect pay. I would technically be fullfilling my obligation and also collecting pay for the 4-8 hours combined time I loose each week answering the phone. I would be clocking in when I arrive and tracking the 15-20 minutes spent with each call and combined they could either pay me for my time or start paying a flat rate to carry the phone. I think the DOL would be for fair labor and to ensure proper payment & compensation for time served would be followed. My time while answering company related calls should be part of that.

      #7; Tue, 02 Jan 2007 20:40:00 GMT
    • Are you salaried? It may be different if you are. Most of the time, if you are a salaried employee, then you can not get overtime anyhow (which I would imagine, that getting these calls, and answering them, would put you into overtime, if they are compensatable, I know there are other issues, on whether you are doing your salaried position, or not, on whether you get the OT, but that is Elle's, cbg's, Robb71, and Patty's department, I know very little about salaried, non salaried, exempt, non exempt, etc lol! It is worth a call to your states Department of Labor, to lay it on the line, whether they would help you collect extra pay or not. If they can't help, then another job, with a life for you, is on the horizon I am afraid. Keep us posted on how this goes please.
      #8; Wed, 03 Jan 2007 15:23:00 GMT
    • I am required to answer the phone and they currently do not pay us for it. We are required to be within the city to respond and open if needed. We did have a Sunday off. But with the current restrictions I don't feel I can be involved in church or any other activity that would require my full attention.

      Example. I work as an audio video tech for my local church. I run the video or audio during the service. I think that I am not alone that it would be very rude and inconsiderate if I had to answer the phone in the balcony of the church, while running the service. My restriction of 30 minutes or less will prevent me from performing these functions.

      Also with my Search & Rescue team I feel I can't be involved because it might require being in the middle of a woods with no transportation and not being able to respond and open. at least without the fear that although I may have saved a life, in return I loose my job.

      If this would happen, would I be out of line after loosing my job to submit an article to the news papers to give the company the recognition they would deserve?

      Missed the last question, I work 6 days a week at 40 hrs no overtime is allowed unless we go in from ON Call. If we go in, we get 3 hrs of pay

      NOT because you run the sound system, but because of church service, and your religion, states, that you go every sunday, you may be exempt from being called only during church hours. If your belief states, that you do not work on Sunday, as mine does, then if they fired you, they may be legally wrong. This is not set in stone, but if you have told them, that it is against your religion to work on Sunday, and you don't answer the call, you may have coverage, but once again, if you have never told them from day one, that Sunday is a holy day, and you are just now saying it, because of the phone thing, they could say, he is using it as an excuse, to get a day off, and off of being on call, and they could win. Contact an employment attorney and ask, it is not worth losing your job over. If they won't work with you, and no law will back you up, your only other option, is to seek work elsewhere, sorry!

      #9; Mon, 01 Jan 2007 22:06:00 GMT
    • If I am traveling with family in the car and get a call that would require me to respond. What insurance would cover me or my family traveling to the store to open? Am I covered under Worker Comp in the event of an accident or injury resulting from being in transit to the store? I was told it was on my Insurance and that until I reach the store I am not covered under the company insurance.

      The purpose of worker's comp is to cover for work related injuries. Standard travel to/from work would not be covered. I agree that if you were in an accident on your way to work, the accident should be reported to your personal insurance NOT the employers.

      I also wondered that if I gave stated times on my application or submit required time off from the cell phone that I was not available and not being compensated for, Would I legally be subject to a discipline or wrongful dismissal.

      I am involved with outside employment on Sunday to assist in producing Audio & Video for a local church. I have been the entire time of employment but now seem to have to give up my hobbys and employment for a non paying option. I find this really to be an invasion of my time and I know Ohio is an "at will" State. How can this be changed? Who do we have to get to make changes to the total disregard to the employee and the abuse of employers from around the state that explote the "On Call" status.

      Time off requests and scheduling are at the discretion of your employer. Unless employed under an enforceable employment contract or collective bargaining agreement (union) which state otherwise, your employer is free to schedule as sees fit and discipline (including termination) for failure to comply.

      I am fully aware that sometimes it appears the worker gets the short end of the stick; however any prudent employer would have and enforce it's policies regarding scheduling and time-off requests. During the holidays it just is difficult to accomodate everyone's requests. Someone will always end up with the undersireable schedule or time-off requests denied.

      #10; Mon, 01 Jan 2007 11:20:00 GMT
    • "If you are at a movie and get a call (if the call goes through that is)."

      We are disciplined if we get it or not.

      Volunteer was the key on your reply - something you want to or have a desire to do. If I was involved as a Volunteer Firemen, I would have to resign according to the responses I have had here. My employer is able to dictate my outside activities because of the ability to limit my availability to be involved in the community because of an unreasonable demands of my off time. This could be your family affected by people unable to respond to a fire at your house because there employer demands them 24/7.

      I know this is out of text but if all employers decided that they can abuse this type of "On Call" status. Eventually the Volunteer efforts for many organizations would fail because no limitations are set on company "On Call" status for employees.

      I am however involved in Search & Rescue for our town. As it would appear I will need to quit being a good citizen and become a model employee with no hope to being anything else. I think someone would know how to raise this question and propose a change to the laws.

      I only propose the question above thinking of 9-11 and other major events and thinking that if I was under these restrictions back then I would not be able to utilize my training and help people. I am sure other people in these types of jobs feel the same. How do we change this ????

      My main job isn't volunteering and I get called out of functions all the time for it. I don't stop going to them.

      The only thing that would concern me is that if they issued you the cell phone and the call doesn't go through, then they can not disipline you. Technology does not work that way, even if you tried to be within signal, you won't always get the call. Are you sure they WOULD disipline you for this? They all say they will, but any good employer understands life's issues. And if they don't, it's not illegal, they are just a bad employer and so you move on.

      #11; Mon, 01 Jan 2007 20:02:00 GMT
    • It's not whether you are salaried or hourly (which are merely pay methods), it's whether you are exempt or nonexempt.

      http://www.dol.gov/esa/regs/compliance/whd/fairpay/fs17a_overview.htm

      #12; Thu, 04 Jan 2007 04:33:00 GMT
    • If I am traveling with family in the car and get a call that would require me to respond. What insurance would cover me or my family traveling to the store to open? Am I covered under Worker Comp in the event of an accident or injury resulting from being in transit to the store? I was told it was on my Insurance and that until I reach the store I am not covered under the company insurance.

      You have just as much coverage in that case as your normal commute to work. None.

      I also wondered that if I gave stated times on my application or submit required time off from the cell phone that I was not available and not being compensated for, Would I legally be subject to a discipline or wrongful dismissal.

      Touchy subject. We ask about availability to work each shift during a week and work hard to honor time off because of school, church or other good reasaons. Should you be asked to work on a day you wanted off, you could be disciplined and, unless you were able to demonstrate that the reason for the dismissal was because you were in a protected class (say, a Muslim who never wants to work on Friday) there would be no wrongful dismissal.

      I am involved with outside employment on Sunday to assist in producing Audio & Video for a local church. I have been the entire time of employment but now seem to have to give up my hobbys and employment for a non paying option. I find this really to be an invasion of my time and I know Ohio is an "at will" State. How can this be changed? Who do we have to get to make changes to the total disregard to the employee and the abuse of employers from around the state that explote the "On Call" status.

      Where you have made your schedule known in advance, and it has not changed, it is too bad your employer is unwilling to work with you unless this was a one time occurence where the employer was in a bind (in which case, you, not the employer, is being unreasonable). Nonetheless, there are no laws preventing either side from being unreasonable.

      This subject hits a bad spot with many people in a lot of states. The laws was wrote to protect the worker as well as the employer. I am not sure about this one. I think someone forgot to protect the workers on this one.:mad:

      So, how would you write the laws? How would employers get coverage when they need it? I am all for flexibility in scheduling and have forced an employee, on threat of dismissal, to work only once in the last 15 years, but I don't see how the laws could be changed to accomodate employee personal time AND employer needs at the same time. Both parties have choices.

      #13; Mon, 01 Jan 2007 16:36:00 GMT
    • have given us a cell phone and stated that we must be available 24/7 on call and respond to the call in 30 minutes or less. If not, we are subject to disciplinary actions up to and including dismissal. :

      20+ years and counting in a 24/7 on call job. It isn't that bad. Volunteer firemen (which most counties have) respond from wherever they are, so, no schedule there... This is a common thing that many people do for a living.

      If you are at a movie and get a call (if the call goes through that is), then you answer it... How often does that happen? I used to put up with it a lot, more than 3 times a week at my old job and end up working through the night to fix whatever there issue is. If it's that type of job, then you start looking for another one, if not, it's not such a big worry.

      #14; Mon, 01 Jan 2007 19:19:00 GMT
    • I was on call 24/7/365 at my last job. There wasn't a set time limit on responding to calls but it was understood that any calls took priority over just about anything else. I was able to do most anything I want though as calls were very infrequent. How often are these calls coming in?
      #15; Tue, 02 Jan 2007 12:05:00 GMT
    • If you are paid on an hourly basis, then you are non-exempt. It is always legal to pay an employee non-exempt, but they do owe OT after 40 hours in a week (the exception doesn't apply here). If this is not happening, then you can file a claim with the DOL for the unpaid time.
      #16; Thu, 04 Jan 2007 14:56:00 GMT
    • 20+ years and counting in a 24/7 on call job. It isn't that bad. Volunteer firemen (which most counties have) respond from wherever they are, so, no schedule there... This is a common thing that many people do for a living.

      If you are at a movie and get a call (if the call goes through that is), then you answer it... How often does that happen? I used to put up with it a lot, more than 3 times a week at my old job and end up working through the night to fix whatever there issue is. If it's that type of job, then you start looking for another one, if not, it's not such a big worry.

      "If you are at a movie and get a call (if the call goes through that is)."

      We are disciplined if we get it or not.

      Volunteer was the key on your reply - something you want to or have a desire to do. If I was involved as a Volunteer Firemen, I would have to resign according to the responses I have had here. My employer is able to dictate my outside activities because of the ability to limit my availability to be involved in the community because of an unreasonable demands of my off time. This could be your family affected by people unable to respond to a fire at your house because there employer demands them 24/7.

      I know this is out of text but if all employers decided that they can abuse this type of "On Call" status. Eventually the Volunteer efforts for many organizations would fail because no limitations are set on company "On Call" status for employees.

      I am however involved in Search & Rescue for our town. As it would appear I will need to quit being a good citizen and become a model employee with no hope to being anything else. I think someone would know how to raise this question and propose a change to the laws.

      I only propose the question above thinking of 9-11 and other major events and thinking that if I was under these restrictions back then I would not be able to utilize my training and help people. I am sure other people in these types of jobs feel the same. How do we change this ????

      #17; Mon, 01 Jan 2007 19:55:00 GMT
    • No, not a workers comp issue at all, sorry. There are two types of on call situations, if you are required to anwer the phone, they don't have to pay you for it, if you have to go in, they do. I would go out of town, like planned, and then if they call, say sure I will come in, but it will take me 5 hours to drive there, they will probably call someone else in, and you did answer your phone after all. Do you otherwise have specific days off? Do you only work when they call you?

      I am required to answer the phone and they currently do not pay us for it. We are required to be within the city to respond and open if needed. We did have a Sunday off. But with the current restrictions I don't feel I can be involved in church or any other activity that would require my full attention.

      Example. I work as an audio video tech for my local church. I run the video or audio during the service. I think that I am not alone that it would be very rude and inconsiderate if I had to answer the phone in the balcony of the church, while running the service. My restriction of 30 minutes or less will prevent me from performing these functions.

      Also with my Search & Rescue team I feel I can't be involved because it might require being in the middle of a woods with no transportation and not being able to respond and open. at least without the fear that although I may have saved a life, in return I loose my job.

      If this would happen, would I be out of line after loosing my job to submit an article to the news papers to give the company the recognition they would deserve?

      Missed the last question, I work 6 days a week at 40 hrs no overtime is allowed unless we go in from ON Call. If we go in, we get 3 hrs of pay

      #18; Mon, 01 Jan 2007 21:26:00 GMT
    • The time spent answering the calls is compensable and while your employer would have to pay you if you came in, they could discipline you for coming in when it was not necessary to do so.

      Thank you so much for your answer ElleMD! She is 100% right, if it could be handled in a phone call, and you took it apon yourself, to come in to deal with it, you could be disciplined, even fired!

      #19; Wed, 03 Jan 2007 08:46:00 GMT
    • webmaster.laborlaw.todaysummary.com.wagehour.com.state.oh.us

      Please send an email, with your concerns, and either they will say you are out of luck, or they will tell you that you should be compensated. Please let me know the response.

      #20; Wed, 03 Jan 2007 00:52:00 GMT
    • The time spent answering the calls is compensable and while your employer would have to pay you if you came in, they could discipline you for coming in when it was not necessary to do so.
      #21; Wed, 03 Jan 2007 07:29:00 GMT
    • NOT because you run the sound system, but because of church service, and your religion, states, that you go every sunday, you may be exempt from being called only during church hours. If your belief states, that you do not work on Sunday, as mine does, then if they fired you, they may be legally wrong. This is not set in stone, but if you have told them, that it is against your religion to work on Sunday, and you don't answer the call, you may have coverage, but once again, if you have never told them from day one, that Sunday is a holy day, and you are just now saying it, because of the phone thing, they could say, he is using it as an excuse, to get a day off, and off of being on call, and they could win. Contact an employment attorney and ask, it is not worth losing your job over. If they won't work with you, and no law will back you up, your only other option, is to seek work elsewhere, sorry!

      Thanks for the feedback, I will check in on that. As for the question of how often, it can be up to 20 - 30 times a week at all hours 2am or 1pm. We used to share with the owner time off - He found out about the employees not being able to refuse and made it mandatory all the time now so he does not have to. we are all looking at leaving him if we can't make a change.

      I always was a company man and anything to help promote the company and secure our jobs. I just feel that this issue should be heard by the DOL and more fair policies be put in place to protect from abusive employers.

      This is not a normal request of employees and should have changes made.

      #22; Tue, 02 Jan 2007 15:17:00 GMT
    • Unfortunately, it is legal to have you be oncall. As long as you are either exempt, or paid for the time you spend actually responding to calls, the DOL is not going to get involved. They don't determine what practices are acceptable, only make sure you are paid appropriately for the duties you do perform.
      #23; Tue, 02 Jan 2007 15:20:00 GMT