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Is this "on-call" structure legal?

Cambridge, MA |

Hi.

I'm a W-2 contractor within the IT field. I currently work through a staffing firm and am stationed at a client site. I've been here for approx. a year now. As of two days ago the resources on my team (including other contractors) were informed that we would need begin working on call weekends.

My contract with my staffing company is for 40 hours per week, which this on-call requirement violates. Secondly, they do not intend to pay for every single hour I am required to be on-call.

This seems to be unethical or highly illegal.

Can someone provide guidance?

Attorney Answers 3

Posted

Hi,

Employers enjoy wide latitude when it comes to these things. There may be some state laws that speak to this, so you should consider reaching out to a MA employment lawyer to discuss all your options. In my experience there is nothing illegal about placing employees on call. Remember, you are never forced to work a job you do not want to.

Best regards,
Frank
Natoli-Lapin, LLC
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Posted

U.S. Dept. of Labor's Fact Sheet No. 22, "Hours Worked Under the Fair Labor Standards Act (FLSA)", "An employee who is required to remain on call on the employer's premises is working while "on call". An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated." (Derived from the U.S. Code of Federal Regulations, Title 29 sec. 785.17, On-call time.) Nolo.com has a brief article on the topic, Calculating Work Hours, which explains the rules and provides examples.
Massachusetts Division of Occupational Safety has this to say:
"If an employee is on-call with a pager, must the employee be paid for this time?
An on-call employee who is not required to be at the work site, and who is effectively free to use his or her time for his or her own purposes, is not working while on call and need not be paid. Of course, if the employee is paged and must perform work, the employee must be paid for all hours worked."
Copied from Mass LawLib website

See also detailed article at: http://www.nolo.com/legal-encyclopedia/free-books/employee-rights-book/chapter2-5.html

This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney for further information.

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Posted

Attorney Mason is spot on. And your employer may not be violating wage laws, per se, but it sounds like there may be a breach of the employment contract itself. First, with regard to the wage laws, the employer MUST pay you for the overtime as well. If it doesnt, then your employer is almost surely violating state and federal wage laws. Second, if your employment contract provides for 40 hours per week - period - then anything over and above that is outside the scope of the contract. You can negotiate a new contract / negotiate an amendment to the current employment contract, and in doing so work out the compensation or reduce hours during the week, etc - you and the employer have many options. If the employer refuses though, and forces employees to be on call / work more than the 40 hours - and if that is contrary to the employment contract - then you could sue the employer for breach of contract. The bigger issue in a case like that would be determing your 'damages' - So, for example, if you were fired or harrassed/threatened, given a pay cut, whatever. In some contracts there are liquidated damages (i.e. set damages for breach where damages are hard to quantify) and that may or may not apply here.

Either way, you should contact an attorney and have your employment contract reviewed to determine if you have a case or not. You dont want to raise these issues with the employer only to find out youve got no leg to stand on and then you lose your job. Our office writes and review contracts of this type, and you are welcome to call.

This response is not to be considered legal advice by anyone. This communication, alone, does not create an attorney-client privilege. Unless you have executed a fee agreement with the attorney, that is related to the subject matter contained in this communication, you are advised not to rely on this communication to make any decisions whatsoever or to create an attorney-client relationship. No attorney-client relationship shall exist with this attorney without a fee agreement executed by you and the attorney.

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