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Overtime/Hourly Pay for On-Call Workers


The Fair Labor Standards Act and North Carolina Wage and Hour Act require employees to be paid for each hour worked and to be paid overtime for hours worked in excess of forty (40) per week. While this seems easy enough, there are many traps for the unwary. One difficult area involves distinguishing between an employee “waiting to be engaged” for work and a worker who is “engaged to wait.” The distinction is crucial because one worker is entitled to wages and overtime pay, while the other may get nothing. If you have any questions about whether you are entitled to be wages for on-call or waiting time, contact Maginnis Law, PLLC at 919.526.0450 or send a confidential email through our contact page.

Employees required to be on-call at or close to the employer’s premises such that they cannot use their time for personal purposes should be paid. The Department of Labor provides insight as to whether personal time should be compensable; “periods during which an employee is completely relieved from duty and which are long enough to enable to him to use the time effectively for his own purposes are not hours worked.” However, employees that cannot use their time away from the employer’s premises for their own purposes are considered working while “on-call” and should be paid for each hour worked.

Determining whether an employee should be paid for waiting is fact intensive. Courts generally apply four factors when determining whether an employee should be paid for on-call time; (1) whether the employee may leave their home, (2) the frequency and duration of calls and nature of the demand on the employee, (3) the employee’s ability to maintain a flexible on-call schedule and ability to trade shifts with other employees, (4) whether the employee can engage in personal activities during on-call times. Other factors to determine whether the on-call time should be compensable is (a) whether the on-call time primarily benefits the employee or the employer, (b) extent to which there are geographic restrictions on the employee’s movements, and (c) whether the employees actually engage in personal activities while  on-call.

Ensuring compliance with the Fair Labor Standards Act is critical. Violations may subject employers to heavy penalties and damages. Maginnis Law’s employment and wage lawyers regularly assist North Carolina employees and businesses in labor and employment issues. To discuss your employment issue, contact wage and hour attorney Karl S. Gwaltney at 919.526.0450 or through email at kgwaltney@maginnislaw.com

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