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"On Call" Restrictions an Issue with California IT Overtime

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San Francisco, CAAlan works for a goliath IT company and he is often required to do 24/7 "on-call" shifts, but the company says they are not required to pay California IT Overtime. This similar rationale applies to just about any position related to information technology. However, Alan believes he is justifiably owed , overtime. " For the past two years, I am owed upwards of $200,000 in overtime compensation and that doesn't even include this year," says Alan.

On-CallAlan (not his real name pending a lawsuit) says a separate overtime case was filed against the company he works for in 2002 but it didn't cover the "on-call" issue. " We were considered exempt from any kind of overtime pay so we worked until the job got done," says Alan. "At the discretion of our technical director, we would get comp time, maybe. It depended pretty much if he liked us—or not."

The 2002 case was settled in 2006 and the company had a new code of conduct that included every employee read the Fair Labor Standards Act (FLSA) and sign that they had read it. Alan explains that one part of the FLSA states if there are restrictions placed on your life, you are entitled to pay when on-call.

According to the FLSA, if you are "on call", you get paid a regular 8-hour shift from 12.01am to 8am and from 8am to 12 pm, it is time and a half. And from 12pm to midnight, double time. On the sixth day, the rates change…

"Being on call, you have to officially respond within 30 minutes, but unofficially it is 15 minutes or less," Alan says. "If we don't meet this 15-minute time frame, we get reprimanded and the reprimands can be severe enough that it affects your chances for promotion or even termination."

But here is the overtime issue: Alan says he is restricted and is entitled to overtime compensation.

"I am a single father and I see my daughter bi-weekly; I can't go anywhere with her weekends because I have to log-on to whatever server is having the problem to troubleshoot the application," he explains. "This is common in the entire industry; I have friends with children and wives they barely even know…for example, last Friday night I was on call and just picked up my daughter from school. We were in line at Blockbuster and I got a page. I paid for the videos and within 5 minutes I got another page from my boss, making sure I got the page.

My complaint is that I am restricted and therefore I should be paid per the FLSA agreement, which means that I should be paid overtime after my 8-hour shift. Being "on call" takes its toll on you: it is so intrusive and detrimental to your health-- I can't even get a date!

Since the 2006 settlement, we fill out an hourly timesheet and it has to be an 8 hour shift, no more and no less. Any overtime has to be approved by your supervisor and they only want to pay you per page, not for being on-call. I make $40 per hour. If the page comes in after my 8-hour shift, we get paid time and a half. A page can only take 15 minutes and that is what we bill the company--$15 for 15 minutes overtime. It is ridiculous.

"On Call" Just Part of the Job

I support this application and it will periodically crash, either because of a server rebooting and the application doesn't come up, or a problem with the application itself. So our group gets notified in several ways: either we are paged from another application that monitors the one we are working on; we get a page from an organization within the company that monitors the application; we get paged from an individual who is trying to process information to that application and is having problems; or we get called directly to our home.

Last year I got an average of 30 pages per week. A lot of these pages came between 2am and 4am, Friday and Saturday nights, because the administrators of these servers would reboot for maintenance reasons.

Filing an Overtime Lawsuit

I filed a complaint with the department of labor last August but I haven't heard a word back—I just received a case number. There is a statute of limitations and since this company recently laid off 20,000 employees, I was concerned that my case will run past the stipulation date. So I found a labor lawyer to help me. Now, my lawsuit will depend upon whether or not my attorney proves that I am classified as restricted.

Initially I was worried about retaliation because I know how this company works. But my attorney reassured me that during litigation, termination would be seen as retaliation and that would even help my case. "



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