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Comments: 735 +- Ask Slashdot: Should You Be Paid For Being On Call? on Monday November 30, @02:37PM
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theodp writes "Fortune's Dear Annie takes on the case of poor Dazed and Confused, an independent webmaster who's expected to be on call for his client at all hours of the day and night, but doesn't get paid for being on call, only for the 40 hours a week that he's in the office. Surprisingly, Annie throws cold water on the contractor's dreams of paid OT, citing these pearls of wisdom from an attorney who's apparently never had the 'privilege' of being a techie on call: 'Many companies see the on-call issue as analogous to a fire fighter's job. Most of the time, a fire fighter is off-duty but on call, hanging around the firehouse, cooking, sleeping, or whatever. What that person really gets paid for is the relatively small, but crucial, amount of time he spends walking into a burning building with an ax. A webmaster, likewise, has slow times and busy times.'" What on call policies are you used to working with and how should it work in an ideal world?
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Well, then... (Score:5, Insightful)
Here's the way I see it. Mr. Lawyer, you want to pay for support 40 hours a week? I'll give you a cellphone number I'll answer 40 hours a week.
It is ridiculous to presume that offering the opportunity to interrupt one's life at any time, any place, with an overriding obligation to deal with your problems, has no value.
Oh, you want the 168 hour phone number? Well, that's gonna cost ya...
Re: (Score:3, Insightful)
Oh, you want the 168 hour phone number? Well, that's gonna cost ya...
... Your job.
Re:Well, then... (Score:5, Insightful)
If he is on the pay-roll he should probably join a union.
Parent
Re:Well, then... (Score:4, Insightful)
I haven't.
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Re:Well, then... (Score:5, Interesting)
In Denmark, the IT union is one of the stronger ones.
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Re:Well, then... (Score:4, Interesting)
You hear that? That loud sucking sound? It's the sound of an IT union driving the last of our jobs overseas at warp speed.
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Re:Well, then... (Score:5, Informative)
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Re:Well, then... (Score:5, Informative)
Read history. Unions occurred when the oligarchs had all the power and the workers (often as young as 8) were little better than slaves working 7/16 with no benefits. Fast forward to the 90s. IT talent is scarce so they can't get away with this. Fast forward to about 20 seconds past the dot com crash. Threatened with wage arbitrage (i.e. outsourcing), IT personnel get hooked to pagers 24/7. Collar and leash optional.
Unions work in other countries like Sweden and Japan. Unfounded claims to the contrary, we're nobody special and they can work here too.
Is there abuse in unions? You bet. Is there abuse without unions? You bet.
Bottom line? If you don't push back, you get pushed to the wall, and asked to bend over.
Parent
Re:Well, then... (Score:5, Informative)
As a swede (who is a union member) I'd like to give my opinion on this.
Suppress wages
Not really, they generally only demand guaranteed minimum raises (which are normally just a little over inflation) and minimum pay dependent on the field people work in. So they don't really suppress wages, they just make sure employers don't try to stick their employees with miserably low pay, and that employers are forced to give out raises that at least match inflation.
defend the inept
Most of the legal action I've seen from unions has been against employers who have insisted on 15 year-old 15" CRT monitors being ergonomically equivalent to new TFT monitors, that employees should come in to work ten minutes early without pay and similar silliness that affects "all" employees ("all" with quotation marks because obviously management has brand-spanking-new 24" TFT monitors because the old CRTs would somehow hamper their ability to work efficiently even though they're perfectly fine for everyone else) or individual cases where an employer wrongfully fired someone and the union offered legal assistance.
petty crap during "bargaining" years
Ah, but the employers are even worse in this regard, nothing like moving assets out of one daughter company with a lot of employees into another daughter company just so you can say the business division is doing poorly and can't afford respectable raises for the employees.
strong arming members
Never heard of this, sometimes individual union representatives can have some wonky demands on employers though, although the only times I've heard of this have involved employers who were notorious for always trying to "bend" labor laws so there was a clear power struggle between the employer and the union to begin with.
and take money away for political purposes.
There are definitely a few unions that do this, they're mostly the classic big "social democrat" unions like LO who have a historic connection to various political parties though.
I'm glad that I'm a union member, it has saved my ass a few times when employers have tried various bullshit.
/Mikael
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Re:Well, then... (Score:5, Interesting)
My experience, working with an education union in Oregon.
Suppress wages - I did IT, the school district was bound to make me an hourly worker by labor agreement with the Union, the Union that represented us was the union for school workers, janitors, secretaries, cafeteria workers. So yes, my wages were suppressed, I couldn't leave the union, couldn't get step pay raises because of education or certification, just by putting time in.
Defend the inept - Having the Union defend a coworker that threatened other coworkers (he talked about bringing a gun in if we didn't treat him better, to a school), tell me not to testify against another Union member who was accused of surfing child p0rn on an elementary school computer, oh it was grand.
Petty crap during "bargaining" years - Teachers union are "bargaining" so they all park in front of school district office, where a number of members of another union work, vandalize cars during work hours. I worked in administration for years and they never did anything like that.
Strong arming members - No secret ballots, blacklisting people who vote against what the union wants for a contract or strike vote, pressure to vote in State and Federal elections for the union's preferred candidate, etc. If you belong to a Teachers Union in the US, just try and vote against what the union wants, and they know who you are because you had to show your union card when you turn in your ballot.
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Re:Well, then... (Score:4, Informative)
I call BS (or at the very least - you didn't know the whole story) - I have an IT friend (who is union) at D9 who collected evidence (in the form of proxy logs and security footage) in Southern Oregon where they fired a union janitor for just browsing regular porn on a teacher workstation. It was against the rules, they had evidence and they got rid of him - simple as that.
The union did nothing to stop management from taking that action. Now if they wanted to fire him for that reason, but had no evidence - I can see the union stepping in because yes - that would be a management abuse.
How many non union shops have you worked for where when layoffs came the managers, managers buddies, managers college friends (who they hired to collect direct deposit paychecks and nothing else) all kept their jobs, but the technicians and IT people all got cut? I've seen that too many times to count. Not saying this wouldn't happen in a union shop, but really - who's inept here?
My father and mother were both teachers in Oregon for all their working lives and have never dealt with any of the things you describe above.
Unions after all are what you make them - it sounds like you belonged to a group of criminals instead of a group of educators wanting to collectively bargain for better employment conditions.
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Re:Well, then... (Score:5, Interesting)
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Re:Well, then... (Score:5, Insightful)
While the Constitution has its flaws, I cannot fathom how horrible a "new" Constitution developed by our current political "leaders" would be. I believe that it would be too horrible to behold.
The current political classes in DC need to be run out of town in total before we should even think of changing the constitution...
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Re:Well, then... (Score:5, Informative)
"Sure, the constitution has its flaws, but it's better than what we have now"
This button made me smile, then frown, then cry.
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Re:Well, then... (Score:4, Interesting)
I would LOVE to be an hourly paid worker, if they divided my current annual salary by 2080 (that's 8 hours a day, 5 days a week, 52 weeks a year) and determined that to be my hourly wage. I reckon my gross income would about double, as hourly paid workers get overtime as a matter of law.
When I worked in Britain, I WAS hourly paid. We were on flex time and allowed to work no earlier than 8AM and no later than 7PM. Security checked the building at that time, and unless you had a note from your manager allowing you to work late you had to leave.
Also we had a 35 hour work week, and as hourly paid, we did receive overtime for any time worked beyond 35 hours, provided it was agreed in advance. However, we did have to clock in and out, and working at home was forbidden and not paid. If you were called at home it was an automatic 15 minutes of overtime, minimum.
Incidentally, all this was negotiated by our union. I was very pleased and happy with the union and gladly paid my dues.
Parent
As an American, here's my union story... (Score:5, Informative)
And as an American in IT working at a unionized plant (I'm not in the union, but I write programs to do scheduling and such based on their ridiculously complicated seniority rules), let me give the other side of the story.
Yeah, this really happens several different ways. First and most obviously, they surpress the wages of the competent. There are people at our plant who are awesome workers who deserve more pay, and lazy people who should be fired and paid nothing at all. But firing is almost impossible, and the union insists everyone gets paid on the same scale. So the people who are as lazy as a pet coon make more than they are worth, and the competent people subsidize this by being paid less. Also, the minute workers unionize, management has to start playing heavy defense and trying as hard as they can to not give raises. Why? Because if they give raises and then have a bad year as a company (such as Chrysler and GM), the union won't take a pay cut, and they may go bankrupt. Every company who has watched the UAW over the years intuitively understands this, so they work hard at not giving an inch even in good times... thus depressing wages. My unionized plant is actually paid less than our non-unionized plants, so it really can happen that way.
Happens constantly. My father in law (a union member) quit his job as a union steward because he was sick of defending people who were in the wrong. At my plant it's the same way. Most grievances are filed by inept workers with a sense of entitlement. Likewise, most of the times management tries to fire inept workers, they can't, because the union defends them tooth and nail. We busted one guy repeatedly for spending hours looking at porn at work, and he kept getting defended. The only way we got him out was by essentially plea-bargaining him: you agree to resign, and we won't make public what you did, so your family won't find out. Otherwise, we couldn't have gotten rid of him, because the contract says you can only be fired if you commit the same offense twice in a six month period, and he was doing it outside the six month window (or at least that's how often we were catching him).
Happens all the time during bargaining, although to be fair both sides are petty. In my plant, both the union and the management hated a certain seniority rule, but neither wanted to negotiate or change it because "once it's gone we might not be able to get the rule back if we ever want it in the future." So you keep it (and fight over it) even though both sides agree it's stupid.
This has never been more true than under the current US administration. The unions are pushing for two new rules. The first is card check, which allows unions to organize based on a check of who is carrying cards, rather than having a formal vote in which both union and management make their case, and then the members vote. In fact, you don't even have to have a majority to unionize under this! And look at the "employee free choice act" rule change: it takes away the right to a secret ballot and makes people vote publicly for and against the union. That way everyone knows who didn't vote for the union, and coercion can take place. Both of these rules are strong arm tactics that do not benefit employees, and taking away a secret ballot or organizing without a vote or even a majority are all totally un-American.
Every union I know of takes dues from its members and spends them to fund the Democratic party. Big Labor is pretty much a wholly owned subsidiary of the Democratic party, and everyone knows it. My father in law sees his dues spent to elect Democrats every year, even though he votes Republican. But that's how unions operate... just like some companies (cough GE cough) try to get in bed with government and carve out monopolies and policies in their favor, Big Labor does the same. They are all about increasing their size, financial and power bases.
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Re:Well, then... (Score:4, Informative)
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Re:Well, then... (Score:4, Informative)
For independent contractors or freelancers, a more comparable model might be the Freelancer's Union [freelancersunion.org] or an entertainment guild/mutual aid association like yours truly's union [editorsguild.com].
Both use collective bargaining to obtain health benefits and provide common resume writing/promotion/education/development services; the latter is a proper union has wage/working condition bargaining power by having a master agreement with all employers in a jurisdiction.
A union of freelancers is workable, and is the SOP in the film/television industry, when union benefits are made "portable" from job to job. In this case then the union's main job is to provide continuity of benefits, so I don't end up having six 401k's all over Los Angeles and paying COBRA one month out of every five.
Parent
Re:Well, then... (Score:5, Insightful)
Well...
Having played both sides of this issue, let me throw some thoughts out to the wolves (so to speak):
1. If he is asking slashdot on how to handle this, I doubt he is in a position to lose any customers.
2. If the website is so problematic that he needs to be on call, then maybe he should make an effort to improve the reliability.
3. I've had a few customers who used to call after hours for issues not related to the work I was doing. If the problem was small and can be done over the phone (or remotely) I usually helped them out for free. If the problem looked like it was going to take some time to fix or required me to drive to their location, I charged. If the problem could not wait until regular business hours, I charged accordingly. The trick was that I did enough gratis work for them, that they didn't flinch when I required payment for the particularly difficult problems...
4. As the economy worsens, the number of competitors for your clients will increase. It's easier to work a little harder to keep a client, then it is to replace one.
5. Keep in mind, that some advice given here on Slashdot are from those who wouldn't mind taking your client.
Parent
Re:Well, then... (Score:5, Informative)
No need for a union. Simply:
1) get written confirmation from your boss you are not elligible for overtime and on-call pay. Show him a copy of the FLSA related to on-call work and have them explain why they fee it does not apply to your position.
2) work as long as you feel you'de like to for that firm.
3) at some point later, present a copy of the FLSA 29 CFR 17 defining on-call pay requirements, having this notorized by a lawyer is nice too. Even an anonymous call to the labor board in your state may also work so you can remain anonymous and reap the benefits without job loss.
4) take large settlement check for all logged time (at time and a half at least, plus additional compensation as best as you can negotiate).
4a) if company offers your continued employment, great, if not, you have a real nice paycheck, plus back pay
4b) if check not offered, sue, you'll be due at least 3 times the back pay at time and a half, plus all your legal fees. It's a cut and dry case, you'll be compensated additionally for time lost, and likely will never appear in court.
Here's the conditions outlined in the FLSA regarding who should be paid for on-call waiting time (on call actual time on a call helping someone is assumed you'll be paid for, this is the "sitting around" time you should also be paid for...):
--Geography. How far can an on-call worker stray from the jobsite? The more restricted he or she is, the more likely it is that on-call time is compensable. Before cell phones and pagers, on-call people often had to be at home, by the phone. Now they can be anywhere, so the issue is less clear. That often brings it down to a matter of
--Response Time. How long a time do you allow for on-call people to respond? That frequently spells how far away they can be. If you demand the person be on-site in 10 minutes, says Jorgensen, the time is likely to be compensable. If it’s 60 minutes, he believes the opposite is true.
--Call Frequency. How often is the person actually called? In one court case, Jorgensen reports, an employee called three to five times a day was ruled to be working and had to be paid. In another case, one called six times in a year was not deemed so.
--Uniqueness. A fourth factor relates to how many of your workers can do the needed work. If there’s a pool of employees available, and employees can trade off the on-call responsibility, there’s less evidence that any one of them is restricted personally.
--Alcohol restrictions. If the company requires you to remain sober during on-call time, likely you qualify for pay during the entire time.
Other things that may factor in regionally or at the state level:
- additional compensation for interrupted meals, including at the least pay for the intire time of the meal plus the interruption, and potentially fair compensation for the cost of the meal.
- minimum 5 hours uninterupted rest clause. Get woken up at 3AM after going to sleep at 11PM. Have to be at work at 8AM next day, so you get up at 5:30. You did not get 5 hours uninterupted, so you must be paid the ENTIRE 8 HOURS OF SLEEP as if you were awake/
- no alternate compensation: can't be compensated with comp time, only payroll. In states where comp-time is approved comensation for on-call work, that must be at 150% the comp rate (equiv of overtime compensation pay). Further, an employer in most states can not make you leave early because you worked late the night before, nor cut your hours to below your average work week in order to avoid overtime.
- OSHA and other FLSA regulations on max time allowable at work in a 24 hour period (varies by job title as well, for instance emergency worker, driver, etc).
Parent
Re:Well, then... (Score:5, Insightful)
Right, I'm sure Mr Lawyer wouldn't mind being on retainer for free either. We'll call you when we need you and pay you on the go.
Firefighters get benefits though in that they are provided food and shelter at no cost and can practically live at the firehouse, albeit not something everyone would love to do :P
I think if you expect someone to be at your every beck-and-call, then you need to pay them. At least give them some reason to care.
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Re:Well, then... (Score:4, Informative)
My experience with lawyers has been that they expect a big fat retainer up front, and then they want to be paid more if they go beyond the scope of the initial retainer. Lawyers don't work on open ended commitments akin to keeping a website up and running in perpetuity. If we weren't talking about a lawyer here, I would say that I don't believe the gall of that woman. But since she is a lawyer, I expect her to be hypocritical and two-faced.
Lawyers nickel and dime clients to death. They charge for photocopies. They charge for drive time to and from court. They expense every single little thing that they can. For a lawyer to tell a webmaster that he is in the wrong for expecting some compensation for time spent after hours working on a website is ridiculous. Lawyers won't even talk to most people about legal matters unless they are getting paid to do it.
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Re:Well, then... (Score:4, Insightful)
"Independent Contractor". No such thing as a base salary.
The trouble ensued when he was about to be laid off and his employer decided (instead of letting him go) to offer him a position as an independent contractor, paid at a rate of 40 hours a week in the office. He didn't realize that the position included being on call 24/7 with no compensation, even though his old salaried position had the same on-call responsibilities, and he signed up to do "the exact same job as before, only paid by the hour instead of on salary, with no benefits."
The difficulty lies in the difference between an employer and a customer. As an independent contractor, his customer is not bound by the same labor laws as they were when he was an actual employee of theirs.
His former employer is now his customer. The customer doesn't "have" to pay him jack for anything. They "have" to pay him what the contract between the two of them states. And in the absence of a written contract, if the conversation never came up about overtime or even straight-time pay for being on call or even handling calls, the customer is not liable for anything. They are paying for office time at 40 hours and he's giving them any additional time out of the office as part of the contract.
His best bet, if he really wants to be paid for on-call, is to go and ask for the terms of his contract to be clarified/changed, at which point his customer will either negotiate with him to find an equitable arrangement, or they can also terminate his contract if they so choose.
The question is not whether he's entitled to overtime for oncall duties. He's not. Sorry. He's offering a service at a set price and if he wants to change that he needs to work it out with his customer.
The real question is whether it's worth the risk to him to renegotiate with his only customer in this sucky economy, because his customer might decide he's not the best vendor after all.
If his skills are truly unique, he can probably work something out. If he's just monitoring a web server and doing things that can be done remotely, his customer might decide that it's cheaper to move the website into a monitored hosting provider.
Parent
Re:Well, then... (Score:5, Interesting)
The trouble ensued when he was about to be laid off and his employer decided (instead of letting him go) to offer him a position as an independent contractor, paid at a rate of 40 hours a week in the office.
If that's really what happened, he's got more problems than this on-call business. As described, that is what the IRS calls 'conversion' and they will reclassify him back as an employee, fine the crap out the employer and keep the self-employment taxes he's been paying as a contractor (double-dip).
Parent
Re:Well, then... (Score:5, Informative)
An independent contractor who has only 1 customer is by law considered an employee. If you're provided a desk, equipment of any kind, security access as an employee is (doesn't have to sign in, etc), is issued commands and job tasks by management, averages over 36 hours per week over a 3 month period or longer, has a dedicated manager, is expected to show up and work regular hours, etc, then the contractor is simply an employee who chooses to not accept HR to process their tax paperwork. In fact, in many states, it is ILLEGAL to have an "independent contractor" not be on the books if at any time their contract is open ended or not related to a specific task with a defined completion date. If he's there ofr a "contract job" where the job ends given a sety of conditions, and where he's the only one doing the work (not part of a team of other full time contractors), then he may very well be a contractor, but then he's got the power to negotiate or walk away as well, and should have a business contract with them, and not have filled out an employment application...
I had an employer try to pull this BS in CT. He thought it would be a great idea to fire us all, hire us back at a 10% pay raise, but save all the benefits, vacation, Social security and HR costs, etc. he saved about $300/week per each of us, and we got $50-100 more... Come tax time, we found out the hard way that just because an employer doesn't pay your matching SS costs and medicare, that does NOT mean it does not have to get paid... i had a $4K tax debt to deal with under this arrangement.
We spoke to a lawyer, and the state department of labor, and the guy got fined big time, and we each got the back pay X3, our tax debt reassigned to his firm, and 10% of what they took out of his ass for reporting him. During the process, he terminated us all instantly, so we also got compensation for unlawful termination and loss of work pay (plus unemployment on top). They also found out he'd been doing this for YEARS in cycles, and got him for a few hundred grand in unpaid taxes, and last I heard he was still serving a 9 year prison sentence for tax evasion (he tried to move all the money and the house to relative's accounts so they could not put leans on it when he refused to pay up). They took everything he had, business home and cars.
Contractors by definition can not be on salary. If you;re buddy is only paid 40 hours as a contractor, he needs to send them a bill and threaten to send a copy to the labor board and the attorney general of the state. Have him tell them he wants time and a half back pay, plus time and a half vacation compensation, plus $300 per payroll period in leiu of stiffer fines from the government, and give them a copy of the FLSA sections refering to the definitions of contractor and employee.
Parent
Of course you should be paid (Score:5, Informative)
You're basically hooked to a pager, which means you need to be near a phone, and usually near a computer with internet connectivity.
I don't work in operations, but everyone in decent places I've worked at did get paid around 3hours of salary per 24hours of wearing the pager. Then it was a minimum of 1 hour per "call" (more like issue, as it could involve multiple calls) except for the first one of the day which was included in the 3hours.
That meant that in a typical week you'd get paid for (24*7)-40 hours of "pager duty", which amounted to 16 hours of salary, so 2 days extra. That's pretty good, assuming you're on a decent rotation and don't have to be THE guy doing it every single week.
Re:Of course you should be paid (Score:5, Interesting)
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Re:Of course you should be paid (Score:5, Funny)
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Re:Of course you should be paid (Score:5, Funny)
I drink when I'm *at* work, I'm certainly not changing that when I'm on-call!
Parent
There seems to be some confusion here... (Score:5, Insightful)
However, it doesn't really much matter exactly how that extra money is delivered. It could be that "The job description of 'Job A' includes being on call, which is why people who do it earn a hefty salary" or it could be "'Job B' is 9 to 5; and time on call is X dollars/hour outside of that". That seems to be the point of confusion.
Re:There seems to be some confusion here... (Score:5, Insightful)
However, it doesn't really much matter exactly how that extra money is delivered. It could be that "The job description of 'Job A' includes being on call, which is why people who do it earn a hefty salary" or it could be "'Job B' is 9 to 5; and time on call is X dollars/hour outside of that". That seems to be the point of confusion.
Exactly. The first question here should be, are we talking about a salaried position or an hourly wage? If it's a salaried position, then the salary should just be higher for taking on a job with the increased responsibility of being on call. "Being on call" should be part of the job description, and part of the negotiation for salary at hiring. If it wasn't and they ask you to be on call, then I think it's generally reasonable to say, "That wasn't part of my job description. If you want me to be on call, then I want a pay bump to go along with it."
If it's an hourly wage, then again it needs to be negotiated. If it were me, I'd probably want a certain rate for working the normal 40 hour week, a different rate for being on call, and a third (relatively high) rate for work done outside of normal hours, while on call. If you want me to make an effort to ensure that I can be reached 24/7, I expect some kind of compensation. If you expect me to actually come in at 2am and work, then I expect to get paid more for that time than I get paid during the normal weekday.
Of course, negotiating terms of employment can always be tricky. If you really like your job and don't mind being on call for the amount you're paid, then you might not want to push it. If you play hardball, it's possible they'll just let you go.
Parent
NOT GONNA DO IT! (Score:5, Insightful)
I tried this once, but I hated being on a leash so much that I quickly found another job. It just wasn't worth my sanity.
Re:NOT GONNA DO IT! (Score:5, Insightful)
One the items often missed here is the exempt employees are supposed to be able to exercise judgment. It's a vague concept in many circumstances. However, if you are able to exercise judgment, you MUST be able to use the following word:
NO.
Do some companies make it hard to say no? Absolutely. Been there done that. But that is what you must do. If you are a worker bee that just takes instructions from management... you are not a professional and you should be paid overtimes.
It's amazing to me the number of people who never even TRY to say no. I don't know how I'd act if my manager actually threatened to fire me for saying no. It's never happened. Granted, I am sure it has cost me in terms of promotions, bonuses... Perfectly fair if you ask me. Someone else is willing to work harder than me... they deserve it.
I'm a pretty reasonable person. I'll put in some extra hours if a deadline is coming up. I'll do a late night call once in a while if there's an emergency. If I start to see a pattern... emergencies happening weekly... then it ain't an emergency and management had better start budgeting for that.
And yes, we should all be grateful to have a job in this time. But never forget this is not a one way street. No employer is going to value you unless you value yourself.
You know the code/equipment; you know the domain; you know the processes; you are known to do good work. You're worth something. If you leave, the company has to go find a replacement, train them, deadlines pushed back because a new person is coming in... and there's uncertainty if it works out... Chances are the company is understaffed as is... and losing you would just make things even more unmanageable. In short, value yourself. Don't overvalue yourself... anyone can be replaced :P
Parent
A contractor? (Score:4, Insightful)
You want the opportunity to use my services at your convenience? Pay me a retainer equal to X hours a month. I work any more than X, you pay me an hourly rate. I work less than X, you still owe me for those hours.
hospital model... (Score:5, Insightful)
Well, the firefighter mentioned is flawed - he is *at work* waiting for a call to come in. On call is not at work, but available should the shit hit the fan.
The hospitals I worked in, the staff that were on call (CAT scan techs, nuke med techs, OR nurses, recovery room nurses, dialysis folks) were paid $1 or $2 per hour just for carrying the beeper. Should they get called in, they were guaranteed 2 hours of pay, but they had to stay waiting for something to do for that whole time (a CT tech could come in and scan someone in 10 min - but they then had to hang out and wait for the extra hour and 50 minutes). This pay was at regular pay rates/levels, so night shift differential or holiday differential kicked in, as would over time if their total for the pay week was over 40 hours.
So... followign this, our poor over worked web master would be paid say $1/hr for totin his beeper or whatever. If he gets called, he comes in and fixes the issue, gets a minimum of 2 hours of work at his hourly rate, and probably gets over time. Sounds good. In reality, he's probably a salaried employee, so over time is out the window, and if he's lucky he may be allowed to leave 15 minutes early on Friday to make up for it.
Firefighting (Score:5, Informative)
Re:Firefighting (Score:5, Informative)
My brother is a firefighter, works 24 on, 72 off. He is at the station the entire time he is "on call", and never, ever gets called when off duty, unless someone needs to trade shifts. If he has training to do, it is either done during his shift (with obvious breaks for fires) or he gets paid additional to come in during his off time (or gets a 24 hour shift waived as payment, basically trading time)
Is the lawyer thinking of Volunteer firefighters? they usually work their real jobs during the day, and when the call comes, go to work as a firefighter. Many Volunteer departments in rural areas don't pay the firefighters, but do re-imburse them a token amount for mileage when they drive to the scene.
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Paid call (Score:3, Informative)
My wife is an OR (operating room) nurse who is paid to be on call, which I would consider to be roughly analogous to this topic. However, there are a couple of major differences:
1. She has to go to a specific location (the hospital) when called in. It's not like she can do her job from home.
2. She's paid hourly.
3. Usually if she gets called in, someone is dying. I would rarely, if ever, classify an IT emergency anywhere near as important as that.
Re:Paid call (Score:4, Insightful)
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The point is that your time is not your own (Score:5, Insightful)
Firefighter Analogy is flawed. (Score:4, Informative)
'Many companies see the on-call issue as analogous to a fire fighter's job. Most of the time, a fire fighter is off-duty but on call, hanging around the firehouse, cooking, sleeping, or whatever. What that person really gets paid for is the relatively small, but crucial, amount of time he spends walking into a burning building with an ax.
This is flawed, as in many fire departments or houses there are multiple crews. You've got 3 days 'in the house' then 3 days 'at home' followed by '4 days in the house' then 4 days 'at home.' When you're in the house, you're responsible for any and all calls that come in. So firefighters get paid for the time they are in the house. Just like most people are paid for the time they are in the office, but aren't paid for Saturdays and Sundays.
If he wants to correct the analogy, he should say that firefighters who are in the 'at home' phase, get called in, but don't get paid for it. They do get paid for it, just like Police Officers that work overtime or off-shift.
He's not really "on call" (Score:5, Informative)
As a independent contractor he gets to choose if he wants to work or not. If he wants to go out of town then go for it, but if they call and you're not available they're going to get someone else. You're not "on call", they just let you know "hey we have some work here if you want it, if not no problem".
Being an independant contracotr for a business just means you are someone they know with a particular skill and they will let you know when they need your expertise in the future. It's the job equivalent of "fuck buddy".
If he got paid for being "on call" as a independent contractor then we'd all have to pay plumbers, lawn mowing guy, electrician, mechanics, and all the other "use you when I need you" people in our lives for being "on call".
Being on call, is being at work. (Score:3, Informative)
If I'm at work I can't drink, can't go out of state, can't do anything outside of what my boss tells me I can do (basically).
If I'm no longer on the clock, I can do whatever I want (basically).
If I'm asked to be on call, I have to mold my "not on the clock" time to whatever my boss requires. I can't go out of state. I can't go to an amusement park with my kids. I can't go to a movie. Well, not unless I don't mind up and leaving to go home and sign on the laptop.
If your boss expects you to do x or y while you're not on the clock, you _are_ on the clock and deserve pay for it. The only time I allow my boss to dictate what I can and can't do is when he's paying me to allow him to boss me around.
Here is where the lawyer's analogy fails. (Score:4, Insightful)
Firefighters aren't just "hanging around the firehouse" when they're not putting out fires. They spend that time maintaining equipment, training, performing building inspections, and a lot of other duties. I'm sure municipal policies vary, but I'm certain that many firefighters work regular shifts, and when an emergency call extends beyond their regular shift they are paid overtime.
Wrong! (Score:5, Informative)
100 percent of wrong. Firefighters are not off-duty when they are on-call. They are on-duty. When they go off-duty, they are no longer on call. Firefighters are typically on-duty for a 24-hour shift for two or three days a week. On their off days, they are not on call. Thus, most of the time, a firefighter is NOT on call.
Absolutely (Score:4, Interesting)
Impairment Compensation (Score:4, Interesting)
My policy always was, my pager compensation was proportional to the potential impairment of my own agenda.
What I mean is, if you expect me to reply to you within a certain time frame, then I have to be near a phone or within cell coverage. This restricts where I can go. If you expect me to connect in remotely, I have to be near internet connectivity, and most of the time be carrying my laptop with me. This further restricts where I can go, and what I can do when I go there. If you want me to be on site within a certain time frame, that even further restricts where I can go.
If I can watch TV, go to the movies, or out for dinner and still be on call, that's not going to cost you as much as if I have to be within 30 minutes of being on-site from the moment you call me.
Historically, I have been lucky. One employer paid us $500/week to carry the pager with a 90-minute call-back SLA (and then hilariously lost the pager number and refused to admit it, so was unable to call us for 8 months). One customer was quoted something stupid like $5K/week for 7x24, 60-minute on-site (plus hourly when we got there). Any call time was billed back to the client, and we (theoretically) got time-for-time in exchange for that. My current employer has a pager our customers to call, but since it is 7x24 it is optional to be in the rotation and for various reasons I've opted out. In addition to receiving money for your week on the pager here, time is tracked very strictly and we get time-for-time for any pager-call time served.
Cut and Dry here (Score:5, Informative)
I've worked On-Call shifts with a number of companies before.
Here's the deal:
The FLSA [Fair Labor Standards Act] regulations provide that "[a]n employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes" is considered to be "working." 29 C.F.R. [section] 785.17
It is against the law for a on-call person to be paid salary. They are non-exempt employees by definition. Any time spent fulfilling required job duties outside of the office must be compensated. Overtime pay scales may or may not apply by job description.
Since a home system, paid for at least in part by an employer, including compensated phone/internet bills and job requirements to maintain a home computer for work purposes (or a provided corporate computer for use at home, including rotated on-call hardware shared by several people) is an extension of the office and the duties of the job, that home system is essentially ruled by the courts to BE the office when on-call. Anytime an employer requires an on-call person to remain in their home, or in proximity to a computer system and to carry and answer a phone routed by the company at specific hours, then that person, under the FLSA, is in fact WORKING. The rate they're paid for that time spent "waiting" for a call may be billed at varying rates, but generally not less than 50% of regular pay, and any time actually on a call would be bileld at the standard rate for that employee (or overtime rate if it applies). Many companies pay a base "convenience" wage to people who are on call but take no calls during that time.
The Supreme Court, in previous rulings, has also concurred. If you are bound to a location, unable to leave and persue personal activities (say, go to a movie, go out to dinner across town, play video games online, go shopping at something other than a local grocery store, etc), or are mandated to be at a computer to handle calls within X minutes of a notice of an alert (the "you can do whatever you want, but you only have 30 minutes to answer a page" idea), then you are essentially work bound, and not free to use your time at your own lesiure. For example, if while on-call, you could go spend a weekend at your parents, so long as you answer calls per company policy, and meet SLAs for handling issues, they you are only required to be paid while actually working, but if that company required you to stay "within 15 minutes of a connected computer at all times while on-call" then you are work bound, and must be compensated at at least a base acceptible rate during that time, including time-and-a-half as mandated for hours over 40.
For example, at one of my employers, all i was required to do was return a paged call within 30 minutes. once the call was returned, it took about 5 minutes to determine what the issue was, but we had a 4 hour response SLA, so you could tell a customer, "I'm on call, and not at home, I'll call you back in 2 hours..." and that was acceptible. We were only paid for time actually logged on calls (rounded to the nearest hour). At another job, The 1 week a month you were on call, you were expected to keep a quiet household, be at home at all times aside from quick errands, and if you got a call, it had to be answered immediately, and you had to be logged in within 20 minutes of the call. We were paid 50% time for all hours "on call" except meals and sleeping and 100% time on calls (and time and a half as it applied only to time on calls).
Further, in many states (including this one), even if only billable when actually on a call, it is illegal to be paid for less than 3 hours in any 24 hour period, regardless of the number of hours worked. It's also illegal to be compensated for less than 1 hour for any block of time spent working that is more than 1 hour apart from another billable hour. For example: on Sunday, you get a call at 10AM that lasts 30 minutes. You get another call at 3PM that lasts only 15 minutes. They have to pay yo
Re:Is Dazed and Confused really bad at his job? (Score:4, Insightful)
It seems you've never dealt with these kinds of people. :)
Even if his system is rock solid, with "free 24/7 contact" (essentially what we're talking about here), one can expect calls at all hours of the day or night with such wonderful nuggets as these:
"I know you're not the website-guy/guy who does the copy/whatever, but..." ...
[SELECT]
[OPTION] We'd really like to change the text on our About Us page
[OPTION] The main page is off center on our senior partner's (320x200) screen
[OPTION] The site is running really slow (9/10 times, some asshole in the office has eDonkey/Bittorrent going full blast)
"... and ..."
[SELECT]
[OPTION] the website-guy is out of town
[OPTION] the website-guy wants to charge us
[OPTION] the website-guy isn't taking our calls since we decided not to pay him
[OPTION] we trust your work more <====== My personal favorite. Get your waders out...
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Re:Personally I believe it depends upon if you're. (Score:4, Interesting)
Well, I hate to disabuse any fantasies out there but I'm the CTO of a *small* software company ;). I get paid well, but not in any way comparable to a board level position at a large (or even mid sized) company. I get to spend time in the board room. I get to be the software architect. I get to be the principal engineer. Apparently this job is about lots of 'opportunity' - LOL.
I wasn't always the CTO of a company, and I have been in the 'on call' support position when a very large company bought a smaller company I was the architect for. These responsibilities were added w/o any recompense. It was only for a transitional 1 year period though. I have been on call support at other times as well (especially early on in my career) and it was something I expected in moderate doses.
The issue the contractor in the article appears to have is that he/she negotiated a contract that stipulated they were paid for in office work but that they would not be paid for out of office work.
BTW, I certainly wouldn't put up with someone yelling at me at work, or a CEO doing it to me in public (my current CEO and I have heated discussions (we don't shout though) but we always manage to differentiate our work relationship from our personal relationship.) I doubt I'd put up with a CEO screaming at me in private either unless I felt I deserved it for some reason (i.e. login: root password: *** cd / rm -rf)
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