Pennsylvania law requires that some on-call time be paid and allows an employer the choice to make some time unpaid. If you have freedom to pursue your own interests while on call, even if required to carry a beeper, then this period need not be paid until one is responding to a call. If required to remain at the employer’s place of business, then typically the law will require your employer to pay their employee for that time.
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The U.S. Department of Labor has issued regulations that assist in the determination of whether an individual is waiting to be engaged (no need to pay) or engaged to wait (must be paid).
An on-call employee who must remain on the employer’s premises or so close that he or she cannot use their time for their own purposes is considered to be working while on-call. Examples in the DOL regulations include reading a book or doing a crossword puzzle while waiting for work, talking to fellow workers while a machine is being repaired or a firefighter waiting for an alarm.
On the other hand, if the employee is available by telephone if needed and can use his or her time freely, then that individual is waiting to be engaged and there is no requirement that the employee be paid for that time. An example in the DOL regulations is that of a truck driver sent to another city for the day to return in the evening. If there is a 6 hour break in the work day in the middle, then the idle time is not spent working and there is no need to compensate the employee for that time. The fact that the individual may be required to carry a pager or cell phone during this time does not change the analysis.
In analyzing these types of cases, some of the key issues involve:
The frequency of interruptions for the employer’s business and whether this significantly interferes with the use for personal time.
Is a uniform required when on call?
What is the required response time and does this require the individual to remain within a certain proximity of the work location.