Overtime Pay for Stand By Time

[windingmeup]

What is the name of your state? California

I am an exempt Employee that has been misclassified. I should be a non-exempt employee and eligible for OT. Part of my job duty requirements are to be on call 24 hours a day 7 days a week.

If I were to miss a call (even if it was at 2 am) I could be fired. I have already been reprimanded in writing for missing a call that came in after midnight and warned that further missed calls could result in by dismissal.

Would I be eligible to collect anything for being on standby in an OT settlement?

 

[windingmeup]

I should add that I have answered dozens of calls after hours in this position while being on call. I have however missed two calls because I was asleep and my cell phone did not wake me up. As part of my job I need to answer every call.

I acknowledged my mistake to them, apologized, and said it would not happen again and then described to them the steps I was taking to prevent missing calls in the future.

 

[cbg]

First of all, I'm interested to hear why you think you've been misclassified. I'm not saying I think you're wrong, but a lot of people misunderstand how the classifications work, and it would be easier to help you break it down.

As to your question, both California law and the EXACT terms of the standby agreement would determine whether or not you would be due overtime if you are indeed misclassified. Since we have not read the agreement, we can't give you a definite answer. Generally it depends on how much time you have to answer a call, what the consequences are (as opposed to what they could be) if you miss a call and how much time you have to respond. Whether you have a cell phone or pager, as opposed to being tied to your house phone or required to stay at work, also factors in.

 

[windingmeup]

CBG thanks for the reply, It's actually a long story as to why I think I am misclassified. I have actually been documenting the whole story in my previous posts. If you need more detail please read previous my previous posts. Here is the short version (it may seem like the long version if you look below at all the text).

I thought I was misclassified about a year and a half ago and started to research this area of the law. Just last February our company approached us and told us we were misclassified. Apparently someone else in our company thought like I did but they approached the US DOL an filed a complaint. I guess our company agreed that we were misclassified and came up with a settlement with the DOL.

I was reclassified as a non-exempt and paid two years of back OT (but only at .5 times my hourly rate not 1.5).

In April I started a new position within this same company but on a different account (I am computer support). For the first two weeks in this position they were not sure how to classify me so I was considered a non-exempt. However, this position was going to require extensive OT and I would be on stand by 24/7. Thus during the first two weeks I was paid OT plus I was paid for my standby time (which was 24/7). I was actually getting paid for every hour of the day and week. I was making $2,000 a week in OT. The stand by time was paid at a rate which was about 1/4 of my hourly rate. I'm not sure how they figured that. This all stopped two weeks into this new position when they moved me back to exempt.

My duties are basically what they call Desktop Support. People call me when their computer breaks and I go fix it. I also do installs (software/hardware), sometimes make recommendations and sometimes provide quick training on how to use Microsoft Outlook, Word and software to connect through a virtual private network.

The caveat is that I do this support for the CEO, and top level VP's of a fortune 200 company. I have found since starting this job that most of my time is spent fixing problems. Other time consuming activities include ordering equipment and services, Installing software/hardware and keeping up to date on the latest software fixes. It's really just Desktop support like I did before. The only difference is that my job requires a very strong customer service skill because of the people we support. It also requires a quick response and that is one reason we are 24/7.

We are suppose to be able to respond to an executives computer problem anytime and anywhere and very quickly. If needed we would travel to their location. I have only traveled once by plane. All other travel has been within an hour drive of the company headquarters..

I'm not sure how to answer the stand by question (maybe I did already). I have included excerpt from the statement of work to help answer that. I have removed proper names to protect the identify of all involved.

“Company A” will provide two (2) dedicated people to provide information technology support for “company B”
executives and their administrative assistants (the “Executives”). These support people will be the
primary point of contact for all information technology support services required by the Executives.
Support is focused on desktop hardware, configuration, and desktop application use. The people
will be knowledgeable in the “company B” information technology environment including the
applications, network, servers, and campus specific issues.
These services will be provided 24 hours per day, 7 days per week. The people will be stationed on
the “Company B City name, CA campus, in the “named” Building and provide off-site support when needed.

The Technicians will respond to requests for support 7 days each week, 24 hours each
day. The Technicians will normally reside in a Company B provided cubicle space near
the Executives on-site in the “named” Building. The Executives will be able to initiate
support requests by direct contact, phone call or page to the Technicians. If the support
is required off-site, the Technicians will advise the “company B” Executive Focal Person to
obtain a pre-approval authorization by email for travel required outside the campus
(standard 25 mile radius).