On call hours/hours of service

[Guest Peggy806]

I posted this under the wrong area the first time. For employees who are paid "on call" hours at a different rate (usually lower), how do you calculate these hours of service...or are they hours of service. The employer does not want to count these hours.

[Jim Chad]

They are hours the employee is paid for, I don't see a legal way to exclude them. Does anyone else?

[Lou S.]

They are hours the employee is paid for, I don't see a legal way to exclude them. Does anyone else?

I agree. For counting the hours I see no way exclude them.

[J Simmons]

I'm not so sure that all paid on-call hours must be counted, at least not those during which no duties are performed.

There are two regulatory provisions that count hours for which the EE is "paid, or entitled to payment". DoL Regs § 2530.200b-2(a)(1) and (2). DoL Regs § 2530.200b-2(a)(1) only requires counting of hours during which duties are performed.

DoL Regs § 2530.200b-2(a)(2) only requires counting of hours for which 'paid, or entitled to payment' for "a period of time during which no duties are performed (irrespective of whether the employment relationship has terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty or leave of absence".

I suppose being available while on-call, perhaps staying within a certain proximity, could be construed to be 'performing a duty', but I think it would be equally reasonable (if not more so) that such is interpreted that the hours while on-call, but not called, do not count.

[Guest Sieve]

I disagree with John's conclusion.

If an employer witholds taxes on on-call wages ("remuneration for services performed by an employee . . .", Treas. Reg. Section 1.3401(a)-1(a)(1)), then I don't see how the employer can then claim that services/duties aren't really being performed and therefore the hours for which these wages are being paid, and for which taxes are being withheld, are not hours of service under comparably-worded ERISA regs. Why withhold if they aren't wages for services?

If you are being paid to be on-call, you are being paid to be ready to come in on a moment's notice, and the service you are performing for the employer (which has a value to the employer), for which you are being paid, is being ready, willing and able to perform your primary duties if called upon to do so (i.e., not being out-of-town, unavailable, or otherwise incapacitated so that you are unable to perform those primary duties)--even more so if the on-call location happens to be the primary job location.

Why is being on-call really different from a fire fighter being "on duty" but asleep at the firehouse, or cooking/eating dinner, or playing ping-pong? What duties is he/she performing other than being available to fight a fire if asked to do so? Why is that significantly different from being on-call in a location other than your primary workplace? Your availability is the service you are providing and for which you are being paid.

So, under the facts of the OP, I think we have hours of service.

[BG5150]

As a tongue-in-cheek response: I don't perform any services on my lunch hour, but I get paid for it. Those hours are counted towards servcice, though.

[Jim Chad]

You get PAID for your lunch hour? WHERE do you work?

We don't even get lunch hours.... we get lunch minutes!

[david rigby]

Sieve's explanation seems right on point.

(However, I'm concerned that he posted at 1:43 am.)

[Guest Sieve]

Not to worry. I was on-call, with nothing to do . . .

[J Simmons]

Sieve, did you get paid for it? More than 10 minutes of Blackberry time while off duty requires pay under the FLSA if you're non-exempt.

[GBurns]

Are you sure that fiddling is covered for non-exempts ?

[J Simmons]

If it's work related...

29 CFR § 785.47 Where records show insubstantial or insignificant periods of time. In recording working time under the Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. (Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946)) This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him. See Glenn L. Martin Nebraska Co. v. Culkin, 197 F. 2d 981, 987 (C.A. 8, 1952), cert. denied, 344 U.S. 866 (1952), rehearing denied, 344 U.S. 888 (1952), holding that working time amounting to $1 of additional compensation a week is "not a trivial matter to a workingman," and was not de minimis; Addison v. Huron Stevedoring Corp., 204 F. 2d 88, 95 (C.A. 2, 1953), cert. denied 346 U.S. 877, holding that "To disregard workweeks for which less than a dollar is due will produce capricious and unfair results." Hawkins v. E. I. du Pont de Nemours & Co., 12 W.H. Cases 448, 27 Labor Cases, para. 69,094 (E.D. Va., 1955), holding that 10 minutes a day is not de minimis.

Also check out the New York Law Journal's piece on this, dated May 21, 2007 at http://online.wsj.com/public/resources/doc...ts/TechTock.pdf

[PensionPro]

Teacher is on paid sabbatical for a semester. Can 401(k) deferrals be withheld from the leave pay?

[Jim Chad]

FWIW I think this comp is eligible for deferrals.