In California, non-exempt employees may be entitled to “on-call” or “standby” pay for hours spent not working, but still under their employer’s control. State labor laws give you a right to compensation of at least the minimum wage for such “hours worked.” On-call hours also count when calculating your overtime pay.
What is “on-call” time?
On-call time is time that you spend under your employer’s control, but not working. While you may not be performing any of your job duties, you also cannot do what you want to do. It is often called “standby” time.
Some examples of on-call time include:
- restaurant workers who are told to be available for a dinner rush,
- a nurse who must return to work within 15 minutes of being called in by her boss,
- security guards who have to be on the premises in order to respond to disturbances, and
- coroners who must investigate deaths within 24 hours.
In all of these examples, the worker is not working, but has to be ready to work. This keeps them from committing much of their time to something that they want to do.
Does my employer have to pay for on-call time in California?
Yes. California employers must pay workers that they engage to wait.
In California, state employment laws and regulations require that all workers be paid at least the minimum wage for “all hours worked.”1 An “hour worked” is any time when you are subjected to the control of your employer.2 This includes all of the time that you are suffered or permitted to work, regardless of whether you are actually required to work.3
This means you are entitled to at least the minimum wage, even if you are not required to work. This covers standby time or on-call time, but only if your employer is exercising sufficient control over you.
How much control does my employer have to exert over me?
According to the California Supreme Court, there are 8 factors that can be used to determine whether your employer is exerting enough control over you for the time to be considered working hours:
- whether you were required to live on the premises or work site,
- whether there were excessive geographical restrictions on your movements,
- whether the frequency of calls back to work were unduly restrictive,
- whether your fixed time for response was unduly restrictive,
- whether you could easily trade your on-call responsibilities with a coworker,
- whether using a pager would ease the restrictions,
- whether you actually engaged in personal activities during the time spent on-call, and
- whether the time on call is primarily spent for the employer and its business.4
None of these factors is dispositive. Additionally, the determination is often factually intensive. However, the more control your employer exerts, the more likely the time is compensable. If the control of the employer restricts the employee’s movements enough, it is a compensable time. The on-call employee’s right to a wage is subject to legal protections.
For example: Los Angeles firefighters who are required to be in the station to respond to a call were under sufficient control for the time to be working hours, even though they could largely do what they wanted while there.5
For example: Service representatives for a healthcare company in San Francisco were not entitled to on-call pay when they had to respond to phone calls within 30 minutes and sometimes make on-site visits within 2 hours. They could also trade on-call responsibilities and often performed personal activities during calls.6
Are there special rules for healthcare workers?
California regulations use slightly different rules for healthcare workers. Rather than defining “hours worked” under state law, they use the federal Fair Labor Standards Act (FLSA).7 Under the FLSA, you are generally less likely to be entitled to on-call pay.
According to the FLSA, on-call time is compensable largely based on 2 factors:
- the employment contract, and
- the degree to which you are free to engage in personal activities.8
Regulations promulgated by the U.S. Department of Labor (DOL) state that being required to remain on your employer’s premises or very close to it makes you on-call.9
This applies to healthcare workers in California, including those working in:
- skilled nursing facilities,
- intermediate and residential care facilities,
- convalescent care institutions,
- home health agencies,
- 24-hour clinics, and
- clinics that perform the following services:
- urgent care,
- neurology, or
- dialysis 10
How much am I entitled to receive?
Under California employment law, you are entitled to at least the minimum wage for all hours worked, including on-call hours. Unless the employment contract provides for a reduced on-call pay amount, you are entitled to receive your employee’s regular rate of pay.
Does on-call time count towards overtime pay?
Generally, yes, work hours from on-call time count towards the calculation of your overtime. However, certain jobs are exempted from this rule.
California law entitles non-exempt workers to overtime pay for hours worked in excess of:
- 8 hours in a workday,
- 40 hours in a workweek, or
- 6 consecutive days in a workweek.11
This overtime pay is 1.5 times your regular rate of pay.
You can also get double-time pay, at twice your regular hourly rate, for hours worked in excess of:
- 12 hours in a single workday, or
- 8 hours on the 7th consecutive day in a workweek.12
These “hours worked” include time on-call.
However, there are some limited exceptions. For example, ambulance drivers and their attendants on a 24-hour shift can agree, in writing, to exclude sleeping and meal periods.13
What can I do if my employer is not paying it?
If you think that you are entitled to on-call pay but your California employer is not paying it, you can:
- file a complaint with the state labor agency, or
- file a wage and hour lawsuit against your employer for violations of California wage and hour law.
You can file a wage complaint with the Labor Commissioner’s Office at the California Division of Labor Standards Enforcement (DLSE) at the Department of Industrial Relations (DIR). This can trigger an investigation by the agency. It will also initiate an alternative dispute resolution process.
You can also file a lawsuit against your employer for unpaid wages, including on-call and overtime pay. Many of these cases become class actions. If your employer is not reporting time worked correctly for you, other workers are likely affected as well.
Before taking either of these options, it is important to talk with an employment lawyer from a reputable law firm.
- 8 California Code of Regulations (CCR) 11040(4)(B) (also known as the Industrial Welfare Commission (IWC) Wage Order No. 4-2001).
- 8 CCR 11040(2)(K).
- Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015).
- Armour & Co. v. Wantock, 65 S.Ct. 165 (1944).
- Gomez v. Lincare, Inc., 173 Cal.App.4th 508 (2009).
- 8 CCR 11040(2)(K).
- Owens v. Local No. 169, Association of Western Pulp and Paper Workers, 971 F.2d 347 (9th Cir. 1992) and 29 CFR 785.14.
- 29 CFR 785.17.
- 8 CCR 11040(2)(J).
- California Labor Code 510 LAB.
- California Labor Code 510 LAB.
- 8 CCR 11090(3)(K).