State of California

  M E M O R A N D U M

  REFERENCE CODE:
  99-065 

  DATE:
  December 8, 1999

  TO:
  Employee Relations Officers
  Personnel Officers

  FROM:
  Department of Personnel Administration
  Labor Relations Division

  SUBJECT:
  Standby/On-Call

  CONTACT:
  Michael T. Navarro, Labor Relations Officer
  916-324-0476
  FAX: (916) 322-0765
  OFFICE VISION: DPA(MichaelNavarro)
  INTERNET: MichaelNavarro@dpa.ca.gov


  As a part of Y2K preparedness, many State agencies are 
  taking extraordinary precautions to ensure that employees 
  are available to respond to any emergency that may arise.  
  Consequently, many agencies may decide to place Work Week 
  Group 2 employees on 
  "stand by" or "on-call" during this critical time.  
  
  The following will explain the possible ramifications with 
  regard to the appropriate level of compensation for "stand 
  by" or "on-call" time under the requirements of the Fair 
  Labor Standards Act (FLSA) and the negotiated Memoranda of 
  Understanding.
  
  "Stand by" or "on-call" time is time an employee spends, 
  usually away from the job site, but under a requirement to 
  be available to return to work on short notice, as the need 
  arises.  The FLSA requires employers to compensate their 
  workers for  "stand by" or "on-call" time when such time is 
  spent "predominantly for the employer's benefit."
  
  Under the FLSA, an employer may incur a compensation 
  liability when placing employees on "stand by" or "on-call" 
  based on a totality of circumstances, which include factors 
  such as:
  
  1.  Physical restrictions placed on the employee (must 
  the employee remain at a particular locale while on-
  call);
  
  2.  Maximum period of time in which the employee is 
  allowed to return to work (response time);
  
  3.  Percentage of calls the employee is expected to 
  return (must the employee respond to every call or 
  only when the employee deems it convenient);
  
  4.  Restrictions on an employee's ability to engage in 
  personal pursuits; and 
  
  5.  The need to respond to a call under penalty of 
  disciplinary action; 
  
  While no single factor creates a compensation liability, 
  the above factors must be viewed in their entirety.  The 
  more restrictive the policy, the more likely the employer 
  will incur a compensation liability under FLSA.  This could 
  be as much as one and one-half (1 1/2) times the hourly rate 
  for all hours on "stand by" or "on-call" in excess of a 
  regular work week of 40 hours.
  
  On the other hand, in situations where the employer only 
  minimally restricts an employee (example: such as a 
  requirement to wear a pager without the absolute 
  requirement to respond within a short period of time), the 
  State may not incur a compensation liability.
  
  Specific language in some of the MOUs may apply under 
  certain conditions.  Therefore, please contact the assigned 
  LRO for each bargaining unit if you have any questions 
  regarding contract interpretations.
  
  If you have general questions concerning this issue, please 
  contact me at (916) 324-0476.
  
  
  
  
  Michael T. Navarro
  Labor Relations Officer