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Asking for my wife who works for a fast food restaurant in Virginia.

She was told by a supervisor that she needed to be on-call (reachable by phone and close by) in case they needed her, whenever she is off from work and on her days off.

Are they allowed to require that? And if so do they have to pay her?

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    Can't answer the question, but please change your username and delete the reference to where your wife works unless you want her to be identified (potentially by staff/management). – user25730 Feb 7 '20 at 1:56
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    Check her contract and working hours. Also they should provide her a work phone if they need to contact her all the time – Shadowzee Feb 7 '20 at 2:04
  • @EJoshuaS-ReinstateMonica Wrong link? I see nothing related in that post – Mars Feb 7 '20 at 3:12
  • @Mars Yeah, sorry, wrong link. – EJoshuaS - Reinstate Monica Feb 7 '20 at 3:27
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    There's some information available here that may be helpful. – EJoshuaS - Reinstate Monica Feb 7 '20 at 3:29
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Federally, check with US Department of Labor web site, the Fair Labor Standards Act says:

  1. An employee is “engaged to wait” when they cannot freely do anything else; for example still at the workplace or nearby. The employee should be paid for that time.
  2. An employee is “waiting to be engaged” otherwise, for example at their house with a telephone.

The FLSA here seems to suggest in this case your spouse is on call but doesn't need to be paid for the time. Unless there are extra protections in your state I think that's the conclusion.

A reference: https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER77.asp

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    There are certainly exceptions/different rules as well, as I had a federal position where I was between 1 and 2--I was required to be able to report to a specific location within 2 hours, meaning I could not travel far away. This time was unpaid however. – Mars Feb 7 '20 at 3:16
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    Unless I'm misunderstanding something, for what I read from your reference, it states that: "your employee is advised of the time that he or she is required to return to work" and "All of the above requirements must be met or the employee is working while waiting". Since they might need her at any time, it seems to me that she should definitely be paid. – nicola Feb 7 '20 at 9:43
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It doesn’t really matter what your contract says, what matters is what you do and how the company copes with it. And what’s important is whether your wife can get a job elsewhere.

First, the supervisor has no power like that. So the first thing is to ask what she gets paid for being on call - it should never be for free. And if he says “nothing” the next step is to go straight to the next higher up in the company and check whether this is a company policy or whether it is just a stupid idea of her supervisor. (This thing is so unusual, I wouldn’t be surprised if it was a stupid idea of the supervisor, and quite possibly an attempt at bullying).

If it’s company policy, then one possibility is for her to use the phone as normal, and if she gets called to do extra work while she sits at home and is bored she goes to work, and any other times (like sitting at home reading an interesting book) she replies that she’s reading an interesting book and is not coming.

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    From a moral standpoint I totally agree with your answer. If this were in Western Europe I would also be reasonably sure that general employment law supports OP acting like that. However, the question is tagged as US and additionally jobs at fastfood restaurants tend to be at low end of the pay scale. That means it seems quite possible to me that the employer just expects full availability without any extra pay and if OP is not happy with that she needs to find a new job. Not nice but that is how US employment often works in these situations. – quarague Feb 7 '20 at 10:53
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Yes, they can make her be wait-to-engage and not pay her for it, given it passes two hurdles.

  1. Her location isn't restricted. She can go wherever she wants, within reason. If she's in the nearest big city when the boss calls, that means the boss has to be fine with her taking however many hours to get back to the restaurant before she can work.
  2. Her activities aren't restricted. She can go to the grocery store and doesn't have to drop everything and rush out the minute she's called. They're not calling her multiple times a day such that she can't get anything done at home.

Bottom line, it comes down to response time. If she gets a phone call and has to be there in a half hour, her activities and location are restricted. If she gets a call first thing in the morning telling her she needs to come in at noon, that's not restricting her activities severely.

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