Do you get paid for being on-call under California law?
Yes. If you're on-call you're owed either the actual time you're on-call or reporting time pay.
What does it mean to be “on-call?” ... what being on-call REALLY means and why you MUST be paid for being on-call
Essentially, being on call means that you must be available for work at a moment’s notice.
Being “on call” means that you have to report to work if called in by, “work.” AKA, the company.
It means that you have to be available to work on a moment’s notice even if you are not physically at work.
If you’re on call, you must be able to respond to a potential crisis or sudden change in the employers' needs. Usually, the company expects you to be available by phone. By either a text, call and/or email.
When you get down to it, you have to spend your on-call time doing things that you can leave immediately.
You can’t be someone’s only ride home. You can’t be the only one taking care of a child. You can’t be the only one taking care of an elderly person. You can’t take a day trip an hour out of town. You can't be at school trying to further your education. You can't be on a date with that special someone (or if you are, that special someone should be ok by you dropping them like a bad habit, not matter how well things might be going at the time). You can't be at the movies with your kids (try dragging your kids out of a movie halfway through the movie, see how that works out for you...).
Going out to a fancy dinner? Forget it, unless you’re fine with leaving before the entree arrives. Really?
If no one can reach you, then you’re not doing what’s required when you’re “on call.” You can't be swimming or surfing or hiking, etc. No traveling that takes you too far away in order for you to respond. That is, you can't be anywhere where you can't be reached immediately. You have to always be in cellular or wi-fi coverage. Always glued to your phone. Suck em up, butter-cup.
Did I mention, that you have to be in condition to actually report to work. No having a beer while watching your favorite college or pro football team. No staying up all night writing that great American novel that you're working on. You can't be tired. You have to be good to go. Ready to suit up. Right them. Heck, you can't be mowing the lawn, unless your fine with the lawn having a Mohawk cut, because you had to leave and go to work.
No changing the oil in car or changing the spark plugs, because you may have to leave for work at a moment's notice. Or you're paying for an Uber or Lift in order to make it to work. Even if I do end up paying for a ride-share, am I going to be able to get all of the grease off my hands and cleaned up in time to make it in to work?
And perhaps one of the most important factors is that you can't be working at a second job while you're on-call. You know how hard it is to make ends meet now days. In most major cities in California, minimum wage - 40 hours a week, won't pay for the rent in most places that you wouldn't want to raise your family - much less a house or apartment where it's safe for your kids to go outside.
So, many folks have to turn to second jobs, just to be able to keep their family going. How are you going to work that second job when you're on-call? The point here is that you can't work a second job when you're on-call.
So, let's get this right - your employer prevents you from working to earn the money that you need in order to support your family and they aren't going to pay you for preventing you from working? Really?
And if you don't like, it you can quit, because there are plenty of people that need to work. So, you're employer gets to control you and your time for much more than the 40 hour workweek that California law talks so much about. And the company doesn't even have to pay for this time that they are preventing you from earning money to take care of your family.
Does that seem fair to workers? Because it sure seems fair to the companies.
In essence, you have to live your life as if you were about to head to work. Except you have to live like this at all the time. Or at least, all the time that you’re on-call.
If all this sounds like it sucks, its does. The law realizes that sucks.
Under these circumstances, does it sound fair that for all of this intrusion into your life, you're not going to get paid for it?
Under California wage law, if you're on-call - are you supposed to be paid?
Yes. Under California law, if your employer has you be “on-call” then you must be paid. The only question is: how much you must be paid for having to be on-call?
Specifically, do you have to be paid for the entire time that you are on-call or do you have to be paid what the law calls “reporting time pay?”
The answer to this question may depend on the level of control that your employer has over your on-call time.
The reason why I say “may” is that this question of whether all on-call time has to be paid for by the employer has not yet been decided by the California Supreme Court. In the only case the California Supreme Court regarding on-call time, the California Supreme Court in the Mendiola case sided with the workers.
And it sure seems that the California Supreme Court will side with workers, especially if your on-call time resembles the description of on-call time that I just talked about. So, if you have an on-call case, the foregoing is the type of record that you (read: your lawyer) will want to establish. Which isn't so hard. Just a matter of sitting down with the company management and walk them through it. One question at a time.
When you bring an unpaid wages case, you’re making contentions or legal or factual arguments to the court. If you hire the right lawyer (this is a BIG “if” that I talk about in this article); you’re most likely going to argue that you’re owed the actual time that you were on-call.
If you don’t understand this, don’t worry. I explain all of this in this article on “Do you get paid for being on-call in California?”
The easy answer: if you’re on-call under California wage law you’re either owed wages for the time that you’re on-call or, at the least - reporting time pay - which is between 2 hours pay and 4 hours pay at your regular rate of pay
like I saide, I explain all of this in detail in this article....
In this article, I discuss these questions, issues and more:
Why is Bill Turley called to testify concerning wage law legislation at the California State Senate and California Assemble?
A No B.S. straight-shooter lawyer
Believe it or not, Bill is known for being a no B.S. straight-up lawyer. Besides being known as one of the leading experts on this area of the law in California, one of the reasons why Bill is asked to testify at legislature hearings is because he is known for being straight-forward and blunt. He is known for being no B.S., with no lawyer-talk, no double-talk.
Here's an example of why you shouldn’t believe what you read on the Internet!!!
When I go to write an article, what I usually do is I actually Google what other articles on the subject that are on the first page or so of Google. I want to know what other people are saying on the subject. I did this, as usual, for the subject of “on-call pay in California.” I found article after article that were not only wrong, but very wrong. This is actually quite common, but - you really need to be aware of it.
Now, I know what you might be thinking. Hey, maybe, I’m wrong and these other articles are actually correct. Before you conclude this, I suggest that you consider my qualifications. I have been regularly asked to testify before the California State Senate and California State Assembly on California wage law.
I represented the workers in the historic California Supreme Court case - Brinker vs. Superior Court. I wrote the winning briefs in the California Supreme Court case - Augustus vs. ABM and Williams vs. Superior Court. I was called “California's Leading Wage and Hour Class Action Lawyer” (I put a copy of the article at the bottom of this webpage).
Putting that aside, I have gotten millions of dollars for employees in on-call class action lawsuits. So, in that respect, the proof is in the pudding, so to speak.
I’m not telling you all of this to brag. I’m telling you this so you know that I not only talk the talk, but I walk the walk also. Just saying.
What I’m trying to suggest is that you might not want to believe those folks that say that you shouldn’t get paid if you’re on call or you might not be entitled to pay if you’re on call.
Or at least, do a little bit more research, before you walk away from potentially getting paid a lot of money in unpaid wages if you work and/or work for a company that didn’t pay you when you were on call.
Now, back to our regularly scheduled program.
Let’s back up a tad - the California Supreme Court is all about protecting workers
The California Supreme Court has repeatedly held in the last 5 years or so (and longer, but for our purposes here I will only talk about the last 5 years or so) in favor of protecting workers.
The following California Supreme Court cases: Brinker, Ayala, Peabody, Iskanian, Mendiola, Kilby, Augustus, Williams, Alvarado, Dynamex, and Troester; all stand for the proposition that the California Labor Code and California’s Wage Orders must be interpreted liberally in order to protect workers.
I have a unique perspective because I was personally involved with the Brinker case (some folks say this is the most important California Supreme Court wage case ever), the Augustus case and the Williams case.
Mendiola and being paid for being on-call
The Mendiola California Supreme Court case was about whether workers should be paid while they are on-call.
Mendiola involved California wage and hour claims brought by security guards who regularly patrolled construction sites for eight hours on weekdays and sixteen hours on weekends, and who were required to reside, uncompensated, in an employer-provided trailer for eight hours after each shift and remain on-call. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 837.
The Supreme Count in Mendiola held that these on-call hours were "hours worked" for the purposes of California's Wage Order 4, and that the employer "could not exclude 'sleep time'" from the compensable hours in the security guards' 24-hour shifts. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838.
The fact that guards could engage in limited personal activities does not lessen the extent of CPS's control. It is the extent of employer control that renders on-call time compensable hours worked under Wage Order 4. Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 842.
Mendiola - how much control? And whether you should be paid for being on-call
The Mendiola court stated the following:
Courts have identified various factors bearing on an employer's control during on-call time:
(1) whether there was an on-premises living requirement;
(2) whether there were excessive geographical restrictions on employee's movements;
(3) whether the frequency of calls was unduly restrictive;
(4) whether a fixed time limit for response was unduly restrictive;
(5) whether the on-call employee could easily trade on-call responsibilities;
(6) whether use of a pager could ease restrictions; and
(7) whether the employee had actually engaged in personal activities during call-in time.’
Mendiola v. CPS Security Solutions, Inc., 60 Cal. 4th 833, 840-842 (2015).
Thus, from the foregoing, it appears that the level of control may play a factor in whether the on-call time must be paid.
However, I’m not so sure that is actually the law in California. I am not so sure the California Supreme Court may actually rule that way today. Now I realize that this was only 4 years or so ago.
But, a lot has changed since then. Specifically, the Augustus California Supreme Court case and the Troester California Supreme Court case. And the Tilly’s case (which isn’t a California Supreme Court case).
First, we will talk about the Tilly’s case.
But before we do, let's point out that the California Supreme Court has not addressed an on-call case with the record that is laid out in the description of what it really means to be on-call that in described in the beginning of this article. When you consider that in light of the California's Supreme Court's discussion in Augustus about the employer relinquishing control and the discussion in the Troester case about the employer having to pay for all time that employees are under the control of the employer - leads one to the conclusion that workers have a pretty decent shot of being compensated while being "on-call" under these circumstances.
You might also notice that none of the various factors that previous courts have considered that bear on an employer's "control" as laid out in the Mendiola case. That is, until the Tilly's case. Which is why Tilly's is so important to our discussion. Because the Tilly's court was the first California court to actually consider the employer's control from the perspective of the employee. If you notice, the control factors addressed in Mendiola seem more focused on the control factor from the employer's perspective.
Which is why perspective is so important. It's how you frame the issue, it's how you marshal the evidence that makes a world of difference in law. Not to diss the lawyering or evidence in the Mendiola case. The workers' lawyers won that case for their clients. I am suggesting that in on-call cases, that one should try and develop the evidence to address the factors I have laid out in this article and ones discussed in the Tilly's case. And even develop better evidence, if possible.
I realize that I have a different perspective than many lawyers. I'm not just about winning cases. I'm also thinking about how to change the law or expand the law to help California workers, just like you.
Even if you’re not entitled to pay for being on-call, you’re entitled to get reporting time pay
In Ward v. Tilly’s the store employees were scheduled on-call shifts. The employees were made to call in a few hours before their on-call shift in order to find out if they had to come into work that day. The Tilly’s court held that under Wage Order 7 the employees must be paid for reporting time pay. Ward v. Tilly's, Inc., 31 Cal. App. 5th 1167, 1187 (2019).
As I explain later in this article, Wage Orders 1-16 all have the same section/ language on reporting time pay in Section 5.
What is reporting time pay?
Generally, under the rules of reporting-time pay in California, if an employee is required to report to work, but performs less than half of his or her usual work hours, the employee must be paid for at least half of the scheduled day’s work at his or her normal pay rate. In addition, employees cannot be paid for less than two hours on a day of reporting, regardless of the time worked.
Why being on call requires the employer to pay employees reporting time pay - because you can't be earning money to feed your family while you're on-call
Under California law if you have to be on-call, then you’re at least owed reporting time pay if you’re not actually called in. The Tilly's court focused on the important issues, from the perspective of the workers. That is, protecting workers, which is the central theme in all of the recent California Supreme Court wage cases.
As the Tilly’s court explained:
On-call shifts “take a toll on all employees, especially those in low-wage sectors. Without the security of a definite work schedule, workers who must be ‘on call’ are forced to make childcare arrangements, elder-care arrangements, encounter obstacles in pursuing their education, experience adverse financial effects, and deal with stress and strain on their family life. The ‘on-call’ shifts also interfere with employees' ability to obtain supplemental employment in order to ensure financial security for their families.” Ward v. Tilly's, Inc., 31 Cal. App. 5th 1167, 1172 (2019).
Practice point: when questioning the management in your case, ask point blank, "While your employees are on-call, then can't be working a second job in order to make money to put food on their families, table, isn't that true?" "Because when they're called in, they have to be able to actually come into work when called, right?" "So, when your employee's are on-call, they are precluded from working a second job and earn money for the time that they are on-call with your company, isn't that true?" And, while they are on-call and being precluded from working in order to earn money for their family, your company isn't paying them for that time, are they?"
That's what I mean by developing the record in your case.
Why being on call requires the employer to pay employees reporting time pay - because your employer's control over your life prevents you from pursuing your goals, enjoying your life and taking care of the people in your life that really matter the most
The Tilly’s court went on to assess toll that being on-call takes on employees:
Like other kinds of contingent shifts, unpaid on-call shifts impose tremendous costs on employees. Because Tilly's requires employees to be available to work on-call shifts, they cannot commit to other jobs or schedule classes during those shifts. If they have children or care for elders, they must make contingent childcare or elder care arrangements, which they may have to pay for even if they are not called to work. And they cannot commit to social plans with friends or family because they will not know until two hours before a shift's start whether they will be available to keep those plans. In short, on-call shifts significantly limit employees' ability to earn income, pursue an education, care for dependent family members, and enjoy recreation time.
Further, because employees must contact Tilly's two hours before the start of on-call shifts, their activities are constrained not only during the on-call shift, but two hours before it as well. That is, at the time employees are required to call in to find out whether they will be required to work on-call shifts, they cannot do things that are incompatible with making a phone call, such as sleeping, watching a movie, taking a class, or being in an area without cell phone service. For example, consider an employee who has been scheduled for an on-call shift from 10:00 a.m. to 12:00 p.m., followed by a scheduled shift from 12:00 p.m. to 4:00 p.m. If Tilly's tells the employee at 8:00 a.m. that she is not needed for the on-call shift, she will not be paid anything for that shift. Nevertheless, she will necessarily have forgone sleeping, working another job, taking a class, etc. both at 8:00 a.m. and between 10:00 a.m. and 12:00 p.m. In short, the employer will have imposed to some degree on four hours of the employee's time—an imposition for which it will not owe the employee any compensation.
For all of these reasons, we conclude that requiring reporting time pay for on-call shifts is consistent with the IWC's goals in adopting Wage Order 7. Reporting time pay requires employers to internalize some of the costs of overscheduling, thus encouraging employers to accurately project their labor needs and to schedule accordingly. Reporting time pay also partially compensates employees for the inconvenience and expense associated with making themselves available to work on-call shifts, including forgoing other employment, hiring caregivers for children or elders, and traveling to a worksite. Finally, reporting time pay makes employee income more predictable, by guaranteeing employees a portion of the wages they would earn if they were permitted to work the on-call shifts.
Ward v. Tilly's, Inc., 31 Cal. App. 5th 1167, 1183-1184 (2019). (Emphasis added).
When sitting down the the company Person Most Qualified to testify in a deposition setting, getting all of the foregoing evidence is not only attainable, but I'll bet that a good California wage lawyer can match that and raise it a level or two, with just a little work and imagination.
It's all about making the right record in your case. The evidence is there, you just have to willing to do the work in order to develop the evidence.
Examples of on-call work arrangements
Not all employers have on-call work schedules like the retail employees described in the Tilly’s case. Here are some examples of on-call work schedules that we have seen:
- IT workers have to be ready to troubleshoot and/or fix computer or high-tech issues. When a computer network is down or a server takes down a company's website, these are the workers that are called on to fix the problem asap.
- Workers in the transportation field have to call in every night in order to see if they are scheduled to work that shift.
- Workers for medical device companies are scheduled to be on-call one or two times per week. They have to remain on standby after regular work hours to answer phone calls from customers and if they are not able to troubleshoot the problem with the medical device over the telephone, then they have to go to the customer’s home or hospital to repair the medical device or replace the medical device.
- Workers for restaurants, have to be ready to go into work in order to cover shifts if employees either don’t show up for work or it is busier than anticipated.
- Workers in plumbing field that have to be on standby to go into work if there is a plumbing leak or emergency and they have to report to work. The same system applies to electricians, water intrusion/ mold remediation, property maintenance, HVAC technicians, computer technicians.
- Workers for limousine companies that have to be on standby to pick up customers if they call for a limousine.
- Factory workers that have to be ready to cover a shift in case someone doesn’t come in or come in a repair the line so that the factory is producing during 2nd shifts and/or 3rd shifts.
How much reporting time pay am I owed if I'm on-call?
Assuming that you’re not owed for all of the hour’s that you are on-call, then you’re owed at a minimum, reporting time pay.
Your “regular rate of pay” is not simply your usual (read: regular) rate of pay or straight time rate. Instead, your regular rate of pay is calculated based upon all of the compensation you earn during each respective pay period. Here is a great series of articles on regular rate of pay in California.
Reporting time pay comes from the California Wage Orders. In this example, I am referring to Wage Order 1 - for Manufacturing Industry.
For every workday that you’re required to be on-call you’re not actually called into work, you’re entitled to half of your regular hours. That can not be less than two (2) hours or more than and four (4) hour’s pay at your regular rate of pay. Wage Order 1 Section 5(A).
Some examples of what you’re owed
Thus, if you’re scheduled to work 8 hours and don’t get called in, you’re owed 4 hours of pay at you’re regular rate of pay.
If you’re scheduled to work 6 hours, you’re owed 3 hours of pay at you’re regular rate of pay.
If you’re just on-call with no set schedule, you’re owed at a minimum of 2 hours pay.
However, you need to understand that this is the minimum that you would be owed.
You’re first contention is going to be that if you’re actually on-call more hours than this, then you’re owed for all of the hours that you’re actually on-call.
Here is the actual language from the Wage Order
Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.
Wage Orders 1 -16, Section 5(A).
What if I’m on-call for a period of time before or after my shift when I work?
If you actually work during the same day that you’re on-call, then you owed either the time that you report to work (if you’re actually called in) or 2 hours of pay, if you’re not actually called in.
Here is the actual language from the wage Order
If an employee is required to report for work a second time in any one workday and is furnished less than two hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.
Wage Orders 1-16, Section 5(B).
What is “Regular rate of pay?”
You shouldn’t confuse you’re regular rate of pay with you’re straight time rate of pay.
Your “regular rate of pay” is not simply your usual (read: regular) rate of pay or straight time rate. Instead, your regular rate of pay is calculated based upon all of the compensation you earn during each respective pay period.
For example, if you straight time rate of pay is $18 an hour. Your regular rate of pay may be higher. Here is an article on regular rate of pay.
You’re not owed reporting time pay if you’re actually called into work and ....
You’re not owed reporting time pay if you’re actually called into work and you work at least half of the scheduled time you’re were supposed to work or at least two hours. Wage Orders 1-16 Section 5(D).
A distinction without a difference (whether you are suppose to call the company or the company calls you in order to tell you that you have to work while you’re on-call)
You should expect the company may make the nonsensical argue that your situation is different that what occurred in the Tilly’s case. In Tilly’s the employees had to “report” in two hours before their on-call shift in order to see if they had to work. Your employer may have used a system where the company will (or customer) will contact you, if you need to report to work. They may try to argue that these situations are entirely different. Not so.
The result in Tilly’s would not have been any different if instead of the employees calling the employer two hours before the shift start in order to indicate if the employees had to work, rather than if Tilly's store manager had called the employees two hour before hand. In both situations the employees are on-call and don’t know if they are actually going to work or not.
Thus, whether you have to call the company to see if you have to work while you’re on-call or the company calls you is a distinction without a difference.
It’s in the Wage Orders
I had a professor in law school that used to say, “Let’s get wild and crazy and look it up.” I loved the expression then and I love it now. It basically means, to me at least - don’t guess, simply look it up and get the correct answer.
Here, the answer, my friend, isn’t blowing in the wind. Instead, the answer’s in the California Wage Orders.
As it turns out, all of the California Wage Orders require reporting time pay other than Wage Order 17 - for Miscellaneous Employees (this is the same Wage Order that doesn’t provide for rest breaks also, by the way). Stated differently, California Wage Orders 1-16 all require reporting time pay. Wage Order 1-16 Section 5.
You don’t get Reporting Time Pay if you're on “paid standby status”
What is paid standby status, you might ask? This is what we’re talking about here anyway. “Paid standby status” is getting paid for being on-call. Because under California law, you must be paid at least minimum wage for all hours worked.
Exceptions for reporting time pay
Exceptions to the requirement for reporting time pay are as follows:
When operations cannot begin or continue due to threats to employees or property, or when civil authorities recommend that work not begin or continue; or
When public utilities fail to supply electricity, water, or gas, or there is a failure in the public utilities, or sewer system; or
When the interruption of work is caused by an Act of God or other cause not within the employer's control, for example, an earthquake.
Wage Orders 1-16, Section 5(C)
The bottom line
A truism in law is “good facts equal good law.” Meaning, that when there is a case with good facts, then good law will usually come out of the case.
The California Supreme Court can only rule on the cases that come before it. The California Supreme Court suggested in Mendiola that the level of control may dictate whether on-call time must be compensated. However, the California Supreme Court has not had the opportunity to rule on whether all on-call time must be paid time.
Since, the Mendiola case, the California Supreme Court has issued the following strong worker protection cases: Kilby, Augustus, Williams, Alvarado, Dynamex, and Troester.
All of which suggest that on-call time must be paid time. In addition, the California Supreme Court now has the benefit of the Tilly’s opinion and logic to help guide their way.
Do you recall the description that I provided at the beginning of this article as to what being on-call really meant to employees. When the California Supreme Court is presented with a case where the evidence developed is that the employees on-call are faced with all of the restrictions that I laid out in this article, I would bet dollars to donuts that the California Supreme Court will hold under these facts, that on-call time is compensable. Meaning, you must be paid for the the actual time that you're on-call.
The money that you’re owed
The bottom line is that the worst you are going to do is be owed reporting time pay if you are made to be on-call. And, you have a pretty decent shot at getting paid all the time that you are made to be on-call by the company.
Questions or if you need help right now?
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This article isn't legal advice
These discussions and/or examples are not legal advice. All legal situations are different. These testimonials, endorsements, photos and/or discussions do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter, your particular case/ situation. Every case is different. There are any number of reasons why class actions are not certified, not won and/or PAGA actions are not successful.
Just because we have gotten great results in so many other unpaid wage cases, doesn't guarantee in particular result in other cases. Including, your wage case. Every case is different. In other words, your mileage may vary.