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Should my employer pay me for required phone stand-by on my personal time?

Toms River, NJ |

If my employer requires me to be on phone duty 1 week each month for 24 hours per day, 7 days for the week, and I'm paid hourly, should I be paid for those hours?

Attorney Answers 6


  1. Best answer

    While I agree with the answer of the first attorney, I also take the position that if you are answering phone calls on behalf of your employer, you are not on personal time at all, but rather you are performing work tasks.

    Matthew Famiglietti


  2. It depends on how much freedom you have to engage in other activities while you are on "phone duty." This is a fact-specific analysis that can only be addressed in a private consultation. Therefore, you may wish to invest in a consultation with an employment attorney to determine your rights.

    The information provided above is for general purposes only. It does not constitute legal advice or create an attorney-client relationship. Seek competent legal representation, because the facts of each case are different.


  3. Whether stand by time is paid or unpaid is determined by whether you have freedom to engage in other activities or whether you are prohibited in engaging in other activities while on call. If your freedom to engage in personal activities is restricted, you are probably entitled to be paid for the standby or on-call time. You should consult a local employment attorney for specific answers to your legal questions based on your unique facts. You can find one here on Avvo.com or by calling your local bar association.
    Best of luck!

    NO LEGAL ADVICE GIVEN. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship set forth in a written document executed by the client and by me or a member of my firm. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. My law firm does NOT provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your case. I can give advice, make recommendations and answer specific questions only after reviewing the evidence and documents applicable to a specific client and following a personal meeting in my office in which the relevant facts can be developed and analyzed. My law firm presently accepts cases involving State and federal administrative law; professional licenses and permits; education law; employment and labor law; and litigation matters in state and federal courts. Our practice is limited to the States of Oregon and California. If you have a case in any other state we would not be able to assist you. Unless we have a signed written fee agreement you are not my or my firm's client.


  4. Maybe. On-call time requires a fact-sensitive analysis. The question is whether the work requirement is such that you really have little to no opportunity for personal activities. If that is the case, you may be able to get overtime. If not, you won't. I suggest you make an appointment with an experience employment lawyer to examine the particulars of your situation. Expect to pay a consultation fee because these interviews usually last at least an hour if done right. Good luck.

    A response to a question posted on Avvo is not intended to create an attorney-client relationship. It is informational only.


  5. If it is just to have your phone on you and be available to take a call - then probably not, with pay being dependent on actually being called. If they make you stay near work with a chance of being called to come in - then possibly. As my colleagues note, it depends.

    This should not be considered legal advice and is intended for educational purposes only. It does not constitute a contract for legal services between any parties. Answers are given to questions for which there may be additional facts not mentioned which might change the legal issues or consequences.


  6. An employee who is required to remain on call on the employer's premises is typically considered to be 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 considered to be working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated as work hours.

    Click http://overtimeadvocate.com/WorkHours.html to read more about what typically constitutes work hours under the law and what usually does not.

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