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Sunday, August 23, 2009

Is My Time Really Your Time?

Cell phones, pagers, emails, text messaging…technology has provided numerous ways to keep in touch with each other. We are always “on” and available. If we want to avoid someone, it is no longer sufficient to say “I never got the message” because we can always get the message, no matter where – or when.

Employers have been quick to grasp the benefits of this technology. The distinction between work time and personal time is becoming blurred.  More and more, employees at all levels (not just executives) are expected to be “on call”, available to work when contacted even when off-the-clock. However, is this legal?

Whether on-call time is compensable often presents a perplexing problem for employers. In determining whether an employee must be paid while on call, we first have to determine if the employee is ''engaged to wait'' or ''waiting to be engaged.''  Skidmore v. Swift & Co., 323 U.S. 134 (1944).  Both the federal Wage and Hour laws and the New Jersey Administrative Code look to whether the employee in question was free to use the “on call” time for personal purposes, or whether the conditions for being “on call” were sufficiently restrictive that the employee could do little more than sit around, waiting for the employer’s call.

The general rule is that non-exempt employees are entitled to receive compensation for on-call time if they are required to be at work and are unable or not permitted to perform personal activities during that time. For example, if an employee is required to remain at home on a day not normally worked, so as to be available to respond to a customer's service call, that employee is considered "engaged to wait" and must be paid at the appropriate rate. In contrast, if the employee is free to leave his home and engage in personal activities (shopping, entertainment, visiting) subject to the understanding that he may be contacted and asked to respond to a service call within a reasonable period of time, the employee is "waiting to be engaged". The employer may pay additional compensation but generally is not required to do so.  As such, employees who are required to carry a beeper, cell phone, or other similar device, or to stay within a certain distance from their home in case of an emergency, are generally not compensated for that time. 

Whether this is a good employment practice, however is the topic for another writing. My time should be my time but, with technology it is becoming your time, too.

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