Employers Now More Liable for On-Call Comp Suits

May 20, 2009 (PLANSPONSOR.com) - Employers around the country are facing an increasing amount of litigation from on-call employees who claim companies are restricting their freedom too much and not paying them for it.

A National Law Journal story said employment lawyers report such claims are popping up in larger wage-and-hour class actions, with on-call employees suing for unpaid overtime. “It’s definitely triggering litigation,” employment attorney Julie A. Dunne told the National Law Journal. “What employers need to do is first of all, take a look at what restrictions they place on on-call time.”

Dunne told the legal newspaper that the key for employers is to make sure they’re not overly restricting on-call employees’ freedom. Essentially, she said, the less freedom an employee has while on call, the higher the risk that the on-call time qualifies as paid time.

For example, Dunne said, employers should consider relevant factors, including geographic restrictions — whether employees are required to be near the office, at home or near a land line; how quickly employees should respond to calls; and how many calls an employee actually receives while on call.

New York attorney Greg Rasin, told the Law Journal that the trick is to make sure on-call employees have the flexibility to do what they want to do.

“If you’re on call, and you’re free to go to a restaurant or go to a movie, or go play golf or tennis, that’s fine,” Rasin said, according to the news report. “But if you’re told, ‘you have to sit in your house and can’t leave,’ then you have to be paid for that time.”