Law Office of Nancy Grim

Northeast Ohio Employment Attorney

Nancy Grim, LLC
Kent Wells Sherman House
247 N. Water Street
Second Floor
Kent, Ohio 44240
Phone: (330) 678-6595
Fax: (844) 270-7608

Nancy Grim Weekly

Topic of the Week  Work Time

 
  • While I have regular shifts during the work week, I also am on call outside work hours one weekend a month. Should I be paid for my on-call time?
  • I've been doing some work "off-the-clock." My boss knows I do it, and hasn't told me not to do it, because many of us need to work extra time to meet our deadlines. Am I supposed to be paid for this work time?
  • I am on duty for 36 hours at a time, but am allowed to sleep during that time. Does my employer have to pay me for my sleep time?
While I have regular shifts during the work week, I also am on call outside work hours one weekend a month. Should I be paid for my on-call time?

The practice of "on-call time" is becoming more widespread, as more employers agree to pay employees who agree to be available outside regular work hours if needed, and to respond by phone or computer within a certain period of time after being contacted. The increasing number of technological devices with the ability to keep individuals in touch 24/7, and employers' willingness to allow more flexible work arrangements means that the question of pay for "on-call-time" is becoming both more common and more complex.

Time that an employee is "on-call" may, under some circumstances, be considered as work time. Generally, if you are not allowed to control and use the time for your own enjoyment or benefit, then the time will be considered work time. On the other hand, if you have control of and are able to use the time for your own benefit, then the time will not be counted as payable time.

There are a variety of factors that courts use to decide if on-call time is work time, including:

 the frequency of the calls received,

 the expected response time,

 the length of time worked when called,

 any restrictions on how far an employee may travel away from home, and

 the ability of the employee to switch shifts.

On-call time must be assessed on a case-by-case basis and there is no way of describing a rule that will apply in every circumstance.

I've been doing some work "off-the-clock." My boss knows I do it, and hasn't told me not to do it, because many of us need to work extra time to meet our deadlines. Am I supposed to be paid for this work time?

Yes. Employers can face expensive lawsuits when they fail to include time spent by employees performing work activities outside of their normal shifts as paid time.

Some employees, for example, may "come early" and start working before their shift's official starting time. This time counts as work time and must be included in pay computations, provided only that the employer knew or should have known that the employee was beginning work early (and, of course, to the extent that the employee spent pre-shift time actually performing work activities). Pre-shift "roll calls" are work time; so are pre-shift meetings like safety meetings. Time spent setting up equipment before the official start time of a shift is work time.

Employees may similarly "stay late" and perform work after their designated shift time is over, but this time must be counted as work time, as well. Time spent by an employee cleaning equipment after the close of a shift is work time. Post-shift work time could also include time spent by an employee performing job-related activities "on the way home," as for example a secretary who drops off the day's mail at the post office or delivers some paperwork to a customer or supplier. Some employees take work home. That time may well be work time. If an employee is contacted at home by telephone for work-related reasons, the time spent is work time (and, of course, if an employee is "called back" to work, the time counts as work time).

I am on duty for 36 hours at a time, but am allowed to sleep during that time. Does my employer have to pay me for my sleep time?

If you are required to be on duty for more than 24 hours at a time, you and your employer may agree to exclude eight hours per day as sleep and meal periods, for which you are not paid, as long as your employer furnishes adequate sleeping facilities and you can usually enjoy an uninterrupted night's sleep. However, if the conditions are such that you are not able to sleep for at least five hours during the eight-hour sleep period, or you are forced to work during that period, then the eight hours revert to time for which you must be paid.

If your work shift is less than 24 hours, then any time you are allowed to sleep during your shift is considered paid time.

 

Thought of the Week

"One important step employers can take to keep workers happy in their role is to give them more autonomy over how, when, and where they work. Having control over your time is actually huge. It just gives you a sense of agency over your life that is massively correlated with life satisfaction."

–Laura Vanderkam

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Trump’s Labor Dept. Has Declared War on Tipped Workers

In October, the Trump administration published a proposed rule regarding tips which, if finalized, will cost workers more than $700 million annually. It is yet another example of the Trump administration using the fine print of a proposal to attempt to push through a change that will transfer large amounts of money from workers to their employers

Top Five News Headlines

  1. Going Back to Work After a Pregnancy Loss
  2. Herbruck Poultry Ranch, Inc. Pays $93,000 to Settle EEOC Harassment and Retaliation Suit
  3. Workplace Immigration Inquiries Quadruple Under Trump
  4. Sex and the Text: What Could Carry the Day in the Supreme Court's Title VII Cases
  5. The tectonic shift in retail is shaking up how stores hire seasonal workers

List of the Week

from DOL: U.S. Bureau of Labor Statistics

Time Americans Spend Working

  • 89% of full-time employed persons work on an average weekday.
  • Multiple jobholders are 90% more likely to work on an average weekday than were single jobholders.
  • On days they worked, 82% of employed persons did some or all of their work at their workplace and 24% did some or all of their work at home.
  • Employed persons spent more time working at the workplace than at home—7.9 hours, compared with 2.9 hours.

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