Can an employee be on-call without pay?

[gkisystems]

What is the name of your state (only U.S. law)? Wisconsin.

My wife is working a 2nd job at a retail video store as an hourly associate. Her hourly rate is very near to minimum wage. She works at this one particular job about 25 hours/week (she also has another job about 25 hours/week at a different employer).

The video store schedules employees for certain specific work hours and also schedules employees for additional "on-call" calls. For the on-call hours, the employee HAS to be available to work at anytime during the on-call hours. As a practical reality, the employee cannot:

A. Work for another employer during that period of time.
B. Take vacation time.
C. Run errands that are out of town because the employees need to stay in close proximity to the video store if they are called in.

On-call hours are not optional.

The issue I have a question about is the compensation for this on-call time. The store does not pay anything for it unless they actually call you into work. As a result, my wife dedicates about 33 hours to the store but is only paid for 20-25 hours (give or take). Is this legal?

I thought only managers or doctors - or at least salaried people can be on-call. This seems like a shady way for a retail store to cheat its employees because they don't know how to properly work up a schedule. At the very minimum, I think the on-call period should be optional.

 

[cbg]

Regardless, mandatory on call time is legal, for any industry, in all 50 states.

Whether or not that time has to be paid for is situation-specific, but on-call time does NOT have to be paid unless it is "unduly restrictive" by the state's definition. None of the three factors you have listed will be considered in determining whether the time is unduly restrictive.

 

[gkisystems]

Regardless, mandatory on call time is legal, for any industry, in all 50 states.

Whether or not that time has to be paid for is situation-specific, but on-call time does NOT have to be paid unless it is "unduly restrictive" by the state's definition. None of the three factors you have listed will be considered in determining whether the time is unduly restrictive.

Is there a list of what is "unduly restrictive" so I can determine if this time needs to be paid? Also, would the employer have the legal right to terminate an employee for not checking in during unpaid on-call time?

 

[Beth3]

I'm in Wisconsin and can tell you that your wife does not need to be paid for her "stand by" on call time - just that time she actually might work. Your wife's regular daily activities are not restricted by being on call. She can go about her usual day without having to sit home by the phone waiting to be called. She can go to the local mall, visit friends, grocery shop, take the kids to the park, etc., as she is reachable by cell phone. The A, B, and C items you've listed do not make her on call time unduly restrictive.

 

[cbg]

What is considered unduly restrictive varies by state, so no, there is no list. However, Beth is in your state - you can take her word. It's generally determined by how long the employee has to respond and how often they are called in to work.

Yes, an employee can legally be fired for not checking in if that is what the employer requires.