“On Call or On the Clock?” California’s Rules for Waiting Time
California On-Call Pay: A Compliance Guide for Employers
When Is On-Call Time Compensable in California?
California employers should carefully evaluate whether employees must be paid for time spent on call. The central issue is generally the degree of control the employer exercises over the employee during the on-call period.
On-call time may constitute compensable “hours worked” when employer-imposed restrictions significantly limit an employee’s ability to use the time effectively for personal purposes. Conversely, when employees remain substantially free to engage in personal activities while merely remaining available to respond if needed, the on-call period may not be compensable.
The analysis is highly fact-specific. Employers should evaluate the practical effect of their on-call requirements rather than relying solely on how the time is described in a policy or employment agreement.
California’s Control Test
California courts generally evaluate on-call arrangements by considering the extent to which the employer exercises control over the employee.
The fundamental question is:
Do the restrictions imposed during the on-call period meaningfully interfere with the employee’s ability to use the time for personal purposes?
The greater the employer’s control, the greater the likelihood that the entire on-call period will constitute compensable working time.
Factors Employers Should Consider
Courts may consider a variety of circumstances when evaluating an on-call arrangement, including:
1. Required Response Time
* Greater risk of compensability: Immediate or very short response time.
* Lower risk of compensability: Substantial response window.
2. Geographic Restrictions
* Greater risk of compensability: Employee must remain on-site or nearby.
* Lower risk of compensability: Few or no geographic restrictions.
3. Personal Activities
* Greater risk of compensability: Personal activities are significantly restricted.
* Lower risk of compensability: Employee remains substantially free to engage in personal activities.
4. Frequency of Calls
* Greater risk of compensability: Frequent calls or interruptions.
* Lower risk of compensability: Calls are infrequent.
5. Ability to Trade Coverage
* Greater risk of compensability: Little or no ability to trade or transfer on-call coverage.
* Lower risk of compensability: Employees may arrange coverage or trade on-call assignments.
6. Required Equipment
* Greater risk of compensability: Required equipment significantly limits the employee’s mobility or activities.
* Lower risk of compensability: Equipment requirements are minimal and do not meaningfully restrict the employee.
7. Consequences for Failing to Respond
* Greater risk of compensability: Failure to respond may result in significant disciplinary consequences.
* Lower risk of compensability: Consequences for a missed response are less restrictive.
8. Actual Interference With Personal Time
* Greater risk of compensability: The employee cannot effectively pursue personal activities during the on-call period.
* Lower risk of compensability: The time remains largely available for the employee’s personal use.
No Single Factor Determines the Outcome
Employers should avoid treating any one factor—such as a particular response time—as creating an automatic safe harbor.
California courts generally examine the totality of the circumstances. A relatively short response time may be manageable when employees can respond remotely, for example, while a longer response period combined with significant geographic and activity restrictions may still substantially constrain employees.
The practical effect of the entire arrangement is what matters.
“Engaged to be Waiting” vs. “Waiting to Be Engaged”
A useful distinction in evaluating waiting and on-call time is whether an employee is “engaged to wait” or merely “waiting to be engaged.”
Engaged to Wait
An employee who is engaged to wait is generally considered to be working during the waiting period.
This may occur when:
Waiting is an integral part of the employee’s duties;
The employee must remain at the workplace or another designated location;
The employee remains substantially under the employer’s control; or
The employee cannot effectively use the waiting period for personal purposes.
Examples may include a security guard waiting for an incident, a receptionist waiting for customers, or an employee monitoring equipment during periods of inactivity.
When employees are engaged to wait, the waiting period generally constitutes compensable working time.
Waiting to Be Engaged
An employee who is merely waiting to be engaged may remain off duty until called upon to perform work.
Factors supporting this characterization may include:
Significant freedom to engage in personal activities;
Reasonable response times;
Minimal geographic restrictions;
Infrequent calls;
The ability to arrange coverage; and
Freedom to leave the workplace.
For example, an employee who carries a phone during a weekend rotation but remains free to travel locally, attend personal activities, and respond remotely may present a different situation from an employee who must remain within minutes of the workplace.
On-Call Arrangements With Greater Compensation Risk
Certain restrictions can substantially increase the likelihood that California law will treat an entire on-call period as compensable.
Restrictive Geographic Requirements
Employers should exercise caution when employees must:
Remain at the workplace;
Stay within a narrow geographic radius;
Remain close enough to return almost immediately; or
Avoid traveling outside a specified area.
The more an employee’s location is controlled, the more difficult it may be to establish that the employee can effectively use the time for personal purposes.
Significant Restrictions on Personal Activities
On-call policies may also create compensability concerns when they materially interfere with ordinary personal activities.
Examples may include restrictions that effectively prevent employees from:
Attending social or recreational events;
Running ordinary personal errands;
Traveling;
Caring for family members;
Participating in activities that make immediate response difficult; or
Otherwise using the period substantially as their own time.
Employers should evaluate whether a restriction is genuinely necessary to meet legitimate operational requirements.
Frequent Calls and Interruptions
Even relatively flexible written policies may create compensable time when employees are called so frequently that their personal time is repeatedly disrupted.
Employers should therefore consider not only the written policy but also how the on-call arrangement operates in practice.
Historical callback frequency, average call duration, and the amount of uninterrupted personal time available to employees may all be relevant.
Equipment Requirements
Requiring employees to carry a phone or laptop will not necessarily make an entire on-call period compensable.
More substantial equipment requirements, however, may affect the analysis when they meaningfully restrict employees’ mobility or personal activities.
For example, requiring an employee to remain near specialized equipment, maintain a work vehicle in immediate proximity, or carry cumbersome tools could increase the level of employer control.
Extremely Short Response Times
Very short response requirements present particular risk.
A requirement that employees respond or report within minutes may effectively prevent them from traveling, attending events, or participating in ordinary personal activities.
Employers should establish response times based on legitimate operational needs rather than automatically requiring employees to respond as quickly as possible.
Factors That May Reduce Compensability Risk
An on-call arrangement may be less likely to constitute compensable working time when employees retain substantial freedom during the period.
Relevant factors may include:
Reasonable response times;
Few geographic limitations;
Ability to engage in ordinary personal activities;
Ability to respond remotely;
Infrequent callbacks;
Ability to trade or transfer on-call assignments; and
Flexibility to arrange coverage.
No factor guarantees that an on-call arrangement will be noncompensable. Employers should consider how the requirements operate collectively.
Industry-Specific Considerations
On-call arrangements are common across many California industries, but the practical analysis may differ considerably depending on the work and industry involved:
Healthcare
Hospitals and healthcare providers frequently use on-call arrangements for nurses, technicians, physicians, and other personnel.
An employee required to remain at a hospital or medical facility will generally present a significantly different compensation analysis from an employee permitted to remain at home.
Employers should evaluate:
Required response times;
Frequency of callbacks;
Geographic limitations;
Whether remote response is possible;
Applicable Wage Order provisions; and
Any applicable collective bargaining agreement.
Emergency Services
Firefighters, emergency medical personnel, and other emergency responders may be subject to specialized wage-and-hour rules.
Time spent at a station awaiting calls may generally be treated differently from off-premises standby arrangements.
Employers should review the statutes, Wage Orders, collective bargaining provisions, and other rules applicable to the particular workforce.
Information Technology and Technical Support
Remote technology has changed the practical nature of many IT on-call arrangements.
An employee who can resolve most issues remotely from a laptop or mobile device may have considerably more personal freedom than an employee required to physically report to a facility within a short period.
Employers should nevertheless consider how often employees actually receive alerts and how disruptive those alerts are.
Resident Managers and On-Site Employees
Resident managers, maintenance employees, and other workers who live at or near the workplace can present particularly complicated issues.
Merely residing on the premises does not necessarily mean every hour spent there constitutes working time. Conversely, requiring an employee to remain on the premises and continuously respond to workplace needs may create significant compensability concerns.
These arrangements should be reviewed individually.
Paying Compensable On-Call Time
When an on-call period constitutes compensable hours worked, employers must ensure those hours are properly recorded and compensated.
Depending on the circumstances, compensable on-call hours may affect:
Minimum-wage compliance;
Daily overtime;
Weekly overtime;
Double-time obligations;
Meal and rest period requirements;
Wage statements; and
Payroll and timekeeping records.
Employers should ensure their payroll systems treat compensable on-call hours consistently with other legally recognized hours worked.
On-Call Time and Overtime
Compensable on-call hours generally count as hours worked when determining applicable overtime obligations.
For example, an employee who completes a regular shift and then remains subject to a compensable on-call arrangement may accumulate additional hours that trigger daily or weekly overtime.
Employers should not treat compensable standby hours as a separate category that is automatically excluded from overtime calculations.
Callback Time
Even when the entire on-call period is not compensable, time actually spent performing work after being called is generally compensable.
This can include:
Telephone calls;
Responding to emails or messages;
Remote troubleshooting;
Logging into company systems;
Traveling when compensable under applicable law;
Performing work at a customer location; and
Returning to the workplace.
Employers should provide employees with a reliable method for recording all work performed during otherwise noncompensable on-call periods.
Reporting-Time Pay
Employers should separately evaluate whether California’s reporting-time pay requirements apply when employees are required to report for work.
Reporting-time pay is governed by the applicable Wage Order and depends on the particular circumstances. Employers should not assume that every callback automatically produces the same minimum payment.
Written On-Call Policies
Employers that regularly use on-call employees should maintain a clear written policy describing the arrangement.
A well-designed policy should address matters such as:
When employees are considered on call;
Required response times;
Whether employees must remain within a geographic area;
Whether remote responses are permitted;
Equipment employees must carry;
Procedures for recording actual work;
Procedures for trading or transferring coverage;
Expectations for missed calls or alerts; and
How compensable on-call and callback time will be paid.
Written policies should reflect actual workplace practices. A carefully drafted policy will provide limited protection if supervisors impose substantially more restrictive requirements in practice.
An Agreement Cannot Eliminate the Right to Compensation
Employers should not assume that an employee’s agreement to an “unpaid on-call” policy resolves the compensation question.
Whether time constitutes compensable hours worked is determined by applicable law and the actual circumstances—not simply by the terminology used in an agreement.
An employer generally cannot convert otherwise compensable working time into unpaid time merely by labeling it “standby,” “on-call,” “voluntary,” or “off duty.”
Common Employer Compliance Risks
Treating All At-Home On-Call Time as Unpaid
Allowing employees to remain at home is relevant, but it does not necessarily resolve the issue.
An at-home employee who must respond almost immediately and is subject to substantial restrictions may still be under significant employer control.
Failing to Record Short Remote Tasks
Employees may respond to calls, messages, emails, or system alerts without recording the time.
Repeated short tasks can create substantial wage-and-hour exposure when employers know or should know the work is occurring.
Employers should establish a practical method for employees to report all on-call work.
Excluding Compensable On-Call Hours From Overtime
If on-call time qualifies as hours worked, employers should evaluate those hours when calculating daily and weekly overtime.
Separately categorizing the hours in payroll does not necessarily remove them from overtime calculations.
Using a Flat On-Call Payment Without Reviewing Hours Worked
Some employers provide a flat amount for an on-call shift.
Employers using this approach should carefully evaluate whether the arrangement satisfies all applicable minimum-wage, overtime, and regular-rate requirements. A flat payment does not automatically satisfy California wage-and-hour law if the underlying time is compensable.
Employer Best Practices for On-Call Programs
Employers can reduce compliance risk by periodically reviewing both their written policies and actual workplace practices.
Consider the following:
Identify the operational need. Determine why employees must remain available and what response time the business genuinely requires.
Minimize unnecessary restrictions. Avoid geographic, personal-activity, and response-time restrictions that are not operationally necessary.
Evaluate actual callback frequency. A policy that appears minimally restrictive on paper may operate very differently when employees receive frequent calls.
Provide a reliable timekeeping method. Employees should be able to record calls, remote work, callbacks, and other work performed while on call.
Train supervisors. Managers should understand that imposing additional informal restrictions can change the compensability analysis.
Review overtime implications. Determine whether compensable on-call hours affect daily overtime, weekly overtime, or double-time calculations.
Review the applicable Wage Order. Industry-specific provisions can materially affect the analysis.
Audit the program periodically. Changes in technology, staffing, callback frequency, or operational expectations may alter whether an existing arrangement remains compliant.
Frequently Asked Questions
Is all on-call time compensable in California?
No. Whether on-call time must be paid generally depends on the degree of employer control and whether employees can effectively use the time for personal purposes.
Does allowing an employee to remain at home make the time noncompensable?
Not necessarily. Location is only one consideration. Significant response-time, geographic, activity, or other restrictions can still support a finding that the employee remains under the employer’s control.
Does it matter if the employee is never actually called?
Potentially, but the absence of a callback is not necessarily determinative. The analysis focuses substantially on the restrictions imposed during the on-call period and their practical effect on the employee’s freedom.
Must actual work performed during an on-call period be paid?
Generally, yes. Employers should maintain a reliable system for recording and compensating telephone calls, remote work, callbacks, and other work performed during on-call periods.
Can employees agree that on-call time will be unpaid?
An agreement does not override California wage-and-hour requirements. If the circumstances make the time compensable, labeling it “unpaid on-call time” generally does not eliminate the employer’s obligation to pay for it.
The Bottom Line for California Employers
California employers should evaluate on-call arrangements based on control, restrictions, and actual workplace practices, rather than labels alone.
The more an employer restricts an employee’s location, activities, response time, and ability to use the on-call period for personal purposes, the greater the likelihood that the time will be considered compensable.
Employers can reduce risk by imposing only restrictions that are operationally necessary, allowing reasonable flexibility whenever possible, accurately tracking work performed during on-call periods, and periodically reviewing whether their policies match actual practices.
Because compensability is highly fact-specific, employers implementing or revising an on-call program should consider having the arrangement reviewed for compliance with California’s Labor Code, applicable IWC Wage Order, and controlling case law before implementation.
Legal Authority
Relevant authority includes:
Applicable IWC Wage Orders and the definition of “hours worked”;
California Labor Code § 1194; and
Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833.
This material provides general information regarding California employment law and is not a substitute for legal advice concerning a particular workplace or on-call arrangement.
Written By: Heath A. Havey
Heath has been advising companies in California, Nevada, Japan, and U.S. employment laws since 1998.
Havey Law Offices LLC provides experienced legal guidance on California employment law and workplace compliance. Contact us today to discuss your company’s legal obligations, address potential compliance concerns, and develop practical strategies to reduce risk and maintain compliance with California employment laws.
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