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Nonexempt Employee On Call Pay

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trp1819

Junior Member
What is the name of your state (only U.S. law)? OH

I work for a Home Healthcare Agency as a Staffing Coordinator currently going on my 3rd year. I am a non exempt employee paid at $16.50 per hour. I participate in the weekly on call rotation with another co-worker. When on call I start Thursday at 5p.m. and ends on Thursday at 8:30 a.m. When on call during the week I was compensated at $30 per day and on the weekends/holiday at $75 per day.

I averaged anywhere from 15-25 calls per day while on call. My paycheck for working as a staffing coordinator was paid bi-weekly, however, my on call check is paid weekly not included with my regular pay.

I reviewed the DOL website and find the information to be a little confusing. As working in healthcare I fall under “Engaged to wait” as I received ALL calls to the company from clients regarding emergencies where I would have to get detail information follow-up with a RN and my Clinical Manager as well as back with the patients. I also take intake calls (patients being discharged from the hospital) where I would have to get there diagnosis and call around to find a RN to evaluate the patient for home care and handle call offs while calling around to find replacement staff.

I am restricted from an active lifestyle while on call because I have to be and a environment where it is free from noise, able to discuss confidential information without violating HIPPA as I have to carry around patients confidential information i.e. (Medicaid/Medicare Billing information, DOB, SSN, Name and Address) and addition I have to carry around employee information that contain their personal and confidential information.

My questions are is being a nonexempt employee who is paid a flat rate of either $30 or $75 does that cover FLSA regulation as providing compensation for a nonexempt employee while working?

Should my on-call pay be included with my regular pay I receive? Or should it be calculated at OT given I worked 40 regular hours in a given week?

From my understanding of FLSA nonexempt employees must be paid at minimum wage or higher for all time the employee is responding to calls. Does this mean actually talking on the phone or waiting to be called?

During the week I am on call 16.5 hours per day during the week from 5p.m. until 8:30 a.m. when the office opens and weekends 24 hours, which totals 106.5 hours a week being on call.

(Side note) while on call I have to use my personal cell phone as the company does not provide a cell phone for use. All calls are forwarded to my personal cell phone . Another restriction place on me from the use of MY personal cell phone.
 


swalsh411

Senior Member
I'm confused. The second your phone rings and you start working on a case you go from "on-call" to "working". Are you saying you are not paid for this time that you spend on the phone doing all this work?
 

trp1819

Junior Member
I tried to be very detail in my questioned. Let me clear things up a little for you. When I am on call I am paid $30 per day during the week and $75 for weekend and holiday. This is all the compensation I receive. This pay is considered my on call pay. There is know additional compensation for actually being on the phone. The DOL "Enaged to wait" status does not state compensation structure based on actual working it only states waiting. This is were I need it broken down to me as they way the law is written it is confusing.
 

swalsh411

Senior Member
You need to be paid for the time you work. The time you spend calling nurses, assisting patients, etc is time worked. You're not going to find any guidance regarding on-call pay for this time you spend working because it's not on call time. Your employer is in serious violation of the law if they are not paying you for all time worked.

So when you put this time you worked on your timesheet what happens? Do they just not pay you for it? Or are you not reporting it on your timesheet?
 

trp1819

Junior Member
I do not complete a timesheet for being on call. However, I do complete a daily call log sheet that shows the number of calls incoming/outgoing. My on call check is not included with my regular office check. I receive my on call check weekly and my office check bi weekly. From the DOL website it states when you have a nonexempt employee who works on call and there work hours go over 40 hours and a week that should be paid at OT. My question is how do I determine what is OT? Also from the DOL website "Fact Sheet 70" states when an employee is engaged to wait they must be paid for all hours. I fall under engaged to wait so should I be compensated at 106.50 hours a week? since that is the total of hours I am "engaged to wait"?
 

swalsh411

Senior Member
Per Federal law non-exempt employees must be paid at least one and a half times their normal hourly rate for all hours actually worked over 40 in a week. The work week can be defined by the employer but must be consistent.

"Engaged to be waiting" vs "waiting to be engaged" can be tricky and I don't consider myself to be an expert. I do know however that you must be paid for all time worked. Your employer cannot legally just call it "on call" and pay you a flat rate if you are actually working.

Do you spend an average of 2 hours per day actually working when you are on call?
 

trp1819

Junior Member
Yes I work more then 2 hours per day when on call. "Engaged to wait" is tricky, however, based on everything I have read on the DOL website and all the examples i fall under "engaged to wait" see 864 F. 2d 1185 - Halferty v. Pulse Drug Company Inc a good example of my case.
 

dmr620

Junior Member
Salaried On call

Hello, I am a Home Health Office Coordinator, I have similar responsibilities to the above original thread. I am responsible for answering all calls on call a week a month, I do not get paid separately or extra for doing this. I am on call for an entire week so I am responsible for when I leave work at 430 until I arrive the next morning at 830am, and both weekend days. Is there any law that requires this time to be paid?
 

HC1432

Member
Hello, I am a Home Health Office Coordinator, I have similar responsibilities to the above original thread. I am responsible for answering all calls on call a week a month, I do not get paid separately or extra for doing this. I am on call for an entire week so I am responsible for when I leave work at 430 until I arrive the next morning at 830am, and both weekend days. Is there any law that requires this time to be paid?
What is your U.S. state?

As previously stated in this thread, if your position is classified as FLSA Non-Exempt (depends on the nature of your work) then you must be paid for all time you actually spend responding to calls. Unless a legally binding contract exists that states otherwise, the situations in which time spent on call (the time not spent on the phone or responding to work situations) is considered hours worked for the purposes of compensation will vary on a case-by-case basis depending on what kind of restrictions are put in place (i.e. are you required to stay on the employer's premises, within so many miles of the premises, etc). If the only restriction in place is that you will need to respond to calls as they come in but you are otherwise free to do what you like with the on-call time, then the time not actually spent answering calls will likely not be considered hours worked.

If your employer is not paying you for the time that you spend actually responding to the calls, they are most certainly violating fair labor standards; this is absolutely compensable time (again, assuming your position is correctly classified as non-exempt which much more information would be needed to make that determination). If that time puts you over 40 hours in a work week, you are also owed overtime pay.

As to whether the on-call time when you are not actually responding to calls is considered compensable time, that cannot be determined by the information you have provided so far.
 

cbg

I'm a Northern Girl
Next time, please start your own thread and do not hijack a long-dead one, no matter how closely the question may resemble yours.

There is no single answer to your question. It depends on details you have not provided.

If you are an exempt employee, the answer is No. If you are exempt, it doesn't matter if you work 24/7/365; you are not entitled by law to a single penny in additional compensation. Ever. Under any circumstances whatsoever.

If you are a non-exempt employee, the answer is possibly some of it. No matter where you are in these United States, you do not have to be paid simply because you are on call. You have to be paid for any time you actually take calls. But in these days of cell phones and pagers and instant communication anywhere, it is unusual for any additional time to have to be paid. Since you can stick your cell phone in your pocket and go out to dinner, or to a movie, or hang out with friends, or go camping, or whatever (these are the things I've seen complained about most often) it's no longer the case that your time is found to be so severely restricted as to be compensable. Sure, exceptions can exist. But they rarely do.
 

eerelations

Senior Member
I have some rather in-depth knowledge of what home health care staffing coordinators do, and if what OP2 does is at all like what the rest of them do, then her position is non-exempt.
 

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