On-Call Time

When Standby and Waiting Time Must Be Paid

You may be entitled to time spent waiting or on call. Such time is not automatically the employer’s to use for free. Under California law, if you are subject to your employer’s control while on call, that time counts as hours worked and must be paid. Whether standby time is compensable depends on how much the employer restricts what you can do while you wait.

If you were not paid for time you were required to stay ready, remain on site, or respond quickly, your rights may have been violated.

When On-Call Time Is Compensable

Hours worked includes all the time you are subject to your employer’s control. California courts, including in Mendiola v. CPS Security Solutions, weigh several factors to decide whether on-call time must be paid:

• Whether you must stay on the premises or within a set distance while on call
• How quickly you are required to respond when called
• How difficult it is to trade or give away your on-call responsibilities
• How much your personal activities are restricted while you wait
• Whether the employer controls your travel or requires you to use its transportation
• The more these restrictions limit your freedom, the more likely the on-call time is paid work.

Controlled Standby Versus Truly Free Time

If you can use on-call time effectively for your own purposes, such as staying home, running errands, and only occasionally responding, it may not be compensable. When the constraints are heavy enough that you cannot realistically use the time for yourself, the time is likely working time. In Mendiola, the California Supreme Court held that on-site security guards had to be paid for on-call time, including certain sleep time, because the employer controlled where they stayed and how they could spend it.

On-Call Time and Rest Breaks

Being on call also affects your rest breaks. In Augustus v. ABM Security Services, the California Supreme Court held that employers cannot require employees to remain on call during rest breaks. An on-call rest break is not a lawful break and entitles you to the one-hour premium, a point covered further on our Rest Breaks page.

Common On-Call Violations

On-call violations often involve unpaid standby built into a schedule. Common examples include:

• Mandatory standby shifts that are not paid
• Being required to stay at or near the worksite while waiting, without pay
• A short required response time that keeps you from using the time freely, without pay
• Unpaid waiting time between assignments or jobs
• Unpaid sleep or standby time for resident or on-site workers

What You Can Recover

If your on-call time should have been paid, you may be able to recover the unpaid wages, which can include minimum wage and overtime on those hours, plus interest. Depending on the facts you may also recover waiting time penalties, wage statement penalties, civil penalties under the Private Attorneys General Act, and your attorney’s fees and costs.

You generally have three years to pursue these claims under the Labor Code, and up to four years under the state’s unfair competition law. Because these claims turn on the specific restrictions you worked under, it helps to speak with an attorney early.

Frequently Asked Questions

Do I have to be paid for on-call time?

It depends on control. If your employer restricts what you can do while on call closely enough that you cannot use the time for yourself, the time is generally hours worked and must be paid.

What decides whether on-call time is paid?

Courts look at factors such as whether you must stay on site or nearby, how fast you must respond, how easily you can trade the duty, limits on personal activities, and control over your travel.

I have to stay near work and respond within minutes. Is that paid?

Likely yes. Tight location and response requirements are strong indicators that the time is controlled by the employer and therefore compensable.

Can I be required to stay on call during a rest break?

No. Under Augustus v. ABM, rest breaks must be free of duty and control, so being kept on call during a break makes it noncompliant and owed as a premium.

How far back can I claim unpaid on-call time?

Generally three years under the Labor Code, and up to four years under the state’s unfair competition law.

Schedule Your Free Consultation

At Righetti Law in San Francisco, our attorneys represent employees in California state and federal courts and have decades of experience handling wage-and-hour and class action matters. We have recovered millions for our clients in court and in settlement.

Your consultation will be confidential, and we will not contact your employer.

Call our firm at 415-983-0900 for a complimentary, confidential consultation. You may also complete our online contact form.