As part of her job at Riverside Medical Center in Kankakee, registered nurse Mary Lay Pittman had to provide her home phone number to her employer, carry a pager and live close to work so that she could get in within 20 to 20 minutes when she was on call for emergencies.
Being on call meant being available to report for duty anywhere from 48 hours on a weekend to an entire week, depending on her employer’s and department’s needs.
With two young children, Pittman found the juggling grueling. “I had to be sure my husband was home, and if he was working I had to have someone spend the night or had to have my children spend the night at grandma’s. They were — and are — too young to be left alone,” she said.
When she wasn’t called in, she made a little extra money, typically $2.00 to $2.50 an hour. If she was called in she got paid more — time and a half for a minimum of two hours. Now, Pittman is the unit coordinator of outpatient surgery and post-anesthesia, a management position that makes her exempt from earning extra money when she is on call.
Approximately 2 million workers, or about 1.6 percent of the country’s total employee population, are considered on call as part of their jobs, according to 1999 data from the Employment Policy Foundation, a Washington, D.C.-based non-partisan economic policy research and education foundation focusing on workplace trends and policies. The 2 million number has not changed significantly since the government started tracking this group four years earlier.
About half of all on-call employees, sometimes referred to as “beeper babies,” work full time; the rest work part time.
Those who typically qualify for extra pay when on call are non-exempt, hourly wage earners eligible for overtime in a variety of professions such as information technology, health care, plant engineering, hotel housekeeping, call centers, building supervising and human resources, according to Carri B. Banka, project manager, compensation, for WorldatWork in Scottsdale, Ariz.
Although on-call jobs are discussed in the Federal Labor Standards Act (FLSA), the 1938 law leaves plenty of room for ambiguity. The FLSA does not spell out how many interruptions and how long they must last for a worker to warrant extra compensation and it does not specify how much that compensation should be.
“There’s no bright-line test the courts use, such as a fourth phone call or a call lasting an hour,” said Richard L. Steer, an adjunct professor of employment law at Pace University School of Law in New York.
“The mere fact that someone carries a beeper, cell phone or similar device because of work does not, in and of itself, constitute work,” added Edward Bergmann, a labor and employment lawyer at the Chicago firm Seyfarth, Shaw.”If someone calls and says they can’t find the Jones file and you tell them it’s in Ed’s drawer, that’s probably not work, but if someone else says the computers have crashed, and it takes you hours and hours to fix them, that probably is.”
On-call pay could come in several forms: built into base pay; represent an average of earnings over a long period; or a percentage of base pay. There’s no single formula since it depends on the work and industry, said Banka.
The lack of clarity has led many employees to feel abused and underpaid when they are on call but are not financially rewarded. Not surprisingly, there has been an uptick in litigation by employees who say they are tired of being classified as exempt so they aren’t eligible for extra pay.
One media relations manager at a medical center, who prefers anonymity for fear of retribution, says his personal life often gets disrupted by his on-call status, yet he rarely gets paid.
“Typically, I’ll be on call from 5 p.m. to 8:30 a.m. so I take home my beeper and keep it on my waist, except at night when it’s on my bedstand. I even put it on the sink when I shower in the morning so I don’t miss a call,” he said. “I’ve never minded being on call, but it would be nice if I got paid.”
Part of his frustration, he said, is his inability to track a pattern regarding when calls may come. “I can go an entire workweek without being paged, then maybe on a weekend there will be three or four calls.”
What the FLSA does differentiate between is those who are “engaged to wait” versus those who “wait to be engaged.” This is the standard by which the courts have made their decisions.
In the first scenario, they must remain on an employer’s premises or so close by that they can get to work within five or 10 minutes. They may also have to be professionally dressed and avoid alcohol. As a result, they are more restricted to pursue personal activities and hence may get paid.
On the other hand, if they “wait to be engaged,” the restrictions are fewer, and employees can pursue leisure activities at home or in a restaurant or movie theater, as long as they can be reached. If they’re not needed, they may not get paid, said Robin Thomas, managing editor of Personnel Policy Service Inc., a human resource publisher in Louisville.
Other criteria that courts consider are an on-premises living requirement, and the ease of using a pager, which might allow greater geographic flexibility, said Ed Potter, president of the Employment Policy Foundation.
Historically, the law has acted in favor of employers by making the standard to pay employees fairly rigorous. An important exception occurred in the case of Renfro, et al. vs. city of Emporia, Kan., in 1991. The Federal district court decided that the city firefighters’ 24-hour on-call time following a regularly scheduled tour of duty was compensable under the FLSA.
Specifically, it found that three to five callbacks per a 24-hour period was undisputed fact; that it was difficult, if not impossible, for firefighters to obtain secondary employment or to trade on-call shifts; and that they could not use their on-call time for personal pursuits since they had to report in within 20 minutes of being paged.
Beside the vagueness of the FLSA wording, many experts say the law is out of date. It was enacted 62 years ago, long before certain jobs existed and before many families included two wage earners, which makes scheduling harder. It also was before the rise of the virtual workplace, which has made working 24/7 sometimes essential, said Fred Crandall of the Center for Workforce Effectiveness in Northbrook.
So that surprises and hostility are lessened, employers and employees need to address this issue during the hiring process or during an evaluation, if it wasn’t part of the original job description. Essential questions, Potter suggests, are: Is this job limited to regular hours of 9 a.m. to 5 p.m. or so? Are my weekends and evenings clear? Is the workday schedule set or can it vary?
Thomas, of Personnel Policy Service, agrees. With unemployment still low, it’s a good time for employees to negotiate the best deals for their on-call time, she said. Perks should include getting a beeper if it’s needed rather than having to buy one, asking for a long enough response time so getting back to work is not overly restrictive and receiving extra pay and a sufficient amount, said Thomas..
In the worst-case scenarios, hostility between employers and employees may arise, said Gilda Carle, who holds a PhD in management consulting. She organizes anger-management sessions to defuse problems that have escalated to the crisis point.
“Some of these workers find they have no private time, don’t know how to say no and have to learn how to find a balance,” she said. “I teach them my three-plus-one-plus-one feel-good way to say no. They give three positives, one no and then an exit statement without using any `buts’, and they don’t do this when their beeper goes off, but at a neutral time in the employer’s office.”
