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Wage and Hour Issues with On-Call Employees

OnDemand Webinar (81 minutes)
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The demands of the modern workplace and the 24/7 needs of many clients and customers pose serious challenges for employers who are striving to meet expectations at the highest level and remain competitive in their industries. Part of this challenge involves finding creative solutions to address staffing needs for non-exempt employees who may be called upon to perform work outside of a company’s normal hours of operation. When quick response times are needed and waiting until the next business day is not an option, some employers look to “on-call” staffing arrangements. If properly administered, these arrangements can provide a cost effective solution to staffing needs during periods of low activity. On-call employees generally do not report for duty unless they are called upon to do so when the need arises and they are sometime able to perform all of their duties without ever having to report to a worksite. With the widespread use of cellular phones and mobile devices, employees now have a level of both freedom and accessibility during on-call periods that has never been seen before. When properly implemented, on-call staffing arrangements require payment of wages only for time actually spent working responding to customer or client needs rather than for all of the time spent on-call.

This OnDemand Webinar will cover the appropriate circumstances under which non-exempt employees can be designated as “on-call” and how to properly structure on-call assignments in order to avoid triggering hourly compensation requirements. Failing to properly limit the responsibilities of an on-call employee can inadvertently convert on-call time into paid working (or waiting) time, leading to thousands of dollars of liability in unpaid hourly wages and overtime. This program is essential for employers who are currently using (or are considering) on-call staffing arrangements, and will include a discussion of the limits of such arrangements and how to avoid potential pitfalls. Relevant criteria and legal guidance under the federal Fair Labor Standards Act (“FLSA”) will be discussed, including how to properly establish an on-call agreement with your employees, the appropriate use of mobile technology, the amount of work that can be performed, the permissible extent of geographic restrictions on an employee’s movement, and reasonable response times. The program will also cover the potential application of the homeworkers exception to the requirement for payment of hourly wages under the FLSA.

Authors

Enzo Der Boghossian, Proskauer Rose LLP

Agenda

Overview

On-Call Time Defined

  • Maintaining the Employee's Ability to Engage in Personal Pursuits and Use On-Call Time Primarily for Their Own Benefit
  • Waiting to Be Engaged vs. Being Engaged to Wait
  • On-Call vs. Telecommuting

Factors for Analyzing On-Call Arrangements

  • Geographic Restrictions on Employee Movements
  • Frequency and Duration of Calls
  • Response Times
  • Trading of Responsibilities
  • Use of Mobile Devices
  • Engagement in Personal Activities
  • Other Considerations

Case Studies

Tips for Creating Compliant On-Call Arrangements Under the FLSA

  • Identifying Positions That Are Suitable for On-Call Staffing
  • Drafting Clear and Unambiguous On-Call Agreements
  • Crafting Appropriate Policies
  • Providing Technology That Gives Flexibility to Employees
  • Limiting the Volume and Frequency of the Actual Work Performed
  • Cumulative Overtime
  • The Homeworker Exception Under the FLSA
  • Awareness of Possible State Law Requirements