Can I refuse to be on standby as an hourly employee? [closed]

Question

I work for a small IT consulting company that is privately owned. I am a software developer on a team of 7 people. Right now I am working typically between 9am and 6pm, just like everyone else on my team. Recently my manager has come up with the idea of having a rotating on call schedule comprised of 3 to 4 of us on the team, including me. Being a small company we don’t have a dedicated support staff, or help desk. Recently we have taken on the role of hosting and administering some applications as well, just not development. Essentially my manager wants us to be available to take calls and work to resolve issues reported by clients.

I completely understand the view of my company that they need extended support beyond 9am and 6pm. Clients want to feel that their systems are being taken care of and someone is there to fix it when something goes wrong. I understand that, and I wouldn’t be complaining if it was as simple as I need to have my phone and take calls. What to me is unreasonable is the expectation that we are going to be able to address the issue on the spot. Essentially that is restricting what I can do on my off time, because I would have to have quick access to a computer, internet, and VPN. I couldn’t take a weekend trip, or really stray far from my house during my on call period. I am usually very active during the Spring, Summer, and early fall months, going on short weekend trips, etc because its cold as hell in Ohio during the Winter. What they are really asking is not being on call, they are asking to be on standby.

I did some research and the general consensus seems to be it’s a big gray area but if you are just on call and the only inconvenience is you have to have your cell phone and answer calls then you are not entitled to compensation. However if there are restrictions put against you in your free time you could be entitled to compensation. Since we are not being compensating to be on standby I’m wondering if I have a ground to say no? If you are an hourly employee , such as I am, in my opinion your free time is your free time to do whatever you want, of course being legal.

In the past if I have been available I’ve always logged in and helped do whatever needed to be done. I used to work late nights, weekends, almost anything they asked. Then they began to take advantage of that, and basically doubled up my work knowing I would do it, instead of hiring additional resources. It went on until I developed an anxiety disordered and told them I couldn’t do it any longer, then they finally hired two new employees. I am partly afraid to be taken advantage of again because our company is cheap.

FYI, I am an hourly employee and have been with the company for 4.5 years, I’m actually the most senior person on my team To summarize my questions are:

1. Can an hourly employee be forced to be on standby without compensation?
2. If asked to be on standby does the company have to provide compensation?
3. Can I refuse to do the work from home, and instead drive into the office to work, making the company have to compensate for travel, and whatever time is spent at the office?

Answer 1

Be prepared for blowback, but this isn't on call, this is after hours help desk. Your employer is getting some level of revenue whether it be in the form of sales or support contracts that support this level.

It would be one thing if you were just escalation since that is generally infrequent, however, if you are being asked to be tied to your computer you could reasonable ask to be compensated for working what is essentially "Help Desk".

Your employer may decide that you have to work these on calls or leave, so be prepared for that. Also, if it's "on call" get in writing what that means in terms of response time. The shorter that time inform him that this puts limits on what you are doing "off the clock" and you should be compensated if he is looking for say 1 hour response time, vs say 12 hour response time.

Lastly get in writing that if you are out and you have to leave, you will start the "clock" as soon as the call arrives. If this means a 1h drive home from the mountains, then that means you get paid for that, and the time to return. You should also be compensated, within reason, for any interrupted activity.

You can discuss with him wether this level of support is in the sales contracts and if not or it's ambiguous, it should either be clarified, or he needs better support infrastructure.

Answer 2

Having been on teams doing out-of-hours support and managing them, I would expect there to be both a rota (sounds like it will have as you mention "if" you're on call), but also some kind of financial arrangement over callouts.

When I did it, there was a payment for being on-call, an additional amount if you actually got a call (and the amount depends on when the call happens, so Saturday afternoon is one thing, but 3am Sunday is something else), I would also expect to be paid at an agreed hourly rate during any callout (again some rate for a daytime weekend, much more for 3am Christmas day).

If that isn't the plan (you should clarify this), then you need to decide what the ramifications are of saying no. Some people on your team may be able to refuse due to family issues or commitments, but if you're a single person the pressure is likely to be more, and could be a career defining issue (if they fire you for refusing).

Also just re-read and you say you're not being compensated, in this situation you would expect time off in lieu, so if you aren't being offered that then you need to think long and hard about it.

Answer 3

Having just moved away from Columbus a couple of months ago (note: I am not a lawyer, just a software engineer no longer working in Columbus), here are some answers specific to your area:

1. Yes, your company can compel you to be on-call.
2. If you are hourly, you must be paid for any time you work.
3. If you exceed your 40 hour week, your employer must also pay you overtime in accordance with Ohio Revised Code 4111.03.
4. You can refuse to do work from home and drive into the office. This travel is not compensated under any regulation and can't be claimed as a deduction under itemized taxes.
5. Salaried employees are considered exempt and can both be compelled to perform the after hours work and not receive additional pay for it unless covered by the Ohio "White Collar" overtime exemption rules. I am not familiar with these rules, consult a legal professional to understand them.

Typically (in Columbus), employers who require an on-call shift, regardless of hourly or salaried status, will provide an offset to normal duties to prevent overtime from occurring. Hourly employers don't like paying overtime, and most salary employers in Columbus are attempting to maintain a positive work environment to stay competitive as employers (with a couple of notable exceptions).

If you refuse, you should be prepared to be let go. If they refuse to pay you overtime for those hours you should be prepared to go to the labor board with your complaints. In any case, Columbus is a very good market for software developers in the Internet space, it would not hurt to be prepared to look elsewhere as well.

Answer 4

To get a proper answer you'll need to check the employment law for your state.

That said, as an hourly employee you can not be compelled to work without pay. So while your employer can require you to work on-call hours, they must pay you for it.

If you were a salaried employee it could be included as part of your work duties, though even then there are limits to the amount of hours your employer can force you to work.

You should be able to find a local resource for employees rights to check this and I recommend that.

Answer 5

Do I have a grounds to say no, this is my free time, outside my designated schedule, and you are not compensating me for this time?

You can always say no.

But if that's a good thing for your continued employment depends on your employer, your local labor laws, and your potential willingness to sue your employer.