Woman Fired after uninstalling 24/7 tracking app
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Here is an easy test....
Does the requirements of one job stop you from being able to take work during the hours when you are not "at that job?" For example, if you are on call and take a job working at an hour call center where your mobile is not allowed, are you able to do both jobs? If there is a conflict, you are working during that time. If you are free, there would be no conflict. (Of duties, a conflict of interest is different.)
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@scottalanmiller said:
@thecreativeone91 said:
According to the government it is.
Do you have a link to the wording of the exemption?
I don't off hand. I believe they just call it insignificant amounts of work. But the wording isn't as important as how lawyers and judges view it. They don't consider being on call working. Only the answering of calls/e-mails, but they consider the amount you usually have to take to answer each item insignificant even if it would add up to hrs a day. because at each time it's insignificant. And to clarify it more even if you actually went into work for say 10-30 minutes and did work and then left because you were sick or something the company doesn't have to pay you for the insignificant work. I believe when it's over 1hr at a single instance is when most of them interpret it as significant.
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So, for example, if you worked two jobs (at completely different hours) and the one where you were sitting in the office saw you take a call for the other job and realized that you are being paid to monitor calls and emails and answer them during the time that you are there, they would legally be able to fire you and possibly prosecute you for working another job instead of the one that they were paying you for. To that employer, you are clearly working during that time.
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@scottalanmiller said:
Being On Call means you are working because you can't be "not working." You can be at home, hopefully, but since you aren't free to simply "not work", it is a form of working. If your time is still controlled and directed, that's working.
Should be considerd that, but that's not how our legal system usually interprets that.
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@thecreativeone91 said:
@scottalanmiller said:
Being On Call means you are working because you can't be "not working." You can be at home, hopefully, but since you aren't free to simply "not work", it is a form of working. If your time is still controlled and directed, that's working.
Should be considerd that, but that's not how our legal system usually interprets that.
Not in Virginia, of course, but I think in all advanced states if it precludes you from earning money elsewhere and stops you from having your own time there is little question. I know in NY it is black and white, no question at all. California is likely even more severe.
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@scottalanmiller no matter how you feel about it, or what logic says, or how things are even wrote down, it does not matter.
The courts have ruled on this more than once. Being on call is not working. You do not have to be compensated for it.
If you actually take a call or a perform an action that should be compensated. Though it does appear that @thecreativeone91 knows a few examples where that has been ruled against also.
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@JaredBusch said:
The courts have ruled on this more than once. Being on call is not working. You do not have to be compensated for it.
If you actually take a call or a perform an action that should be compensated. Though it does appear that @thecreativeone91 knows a few examples where that has been ruled against also.
Does this include where you MUST be on call, and not just where you are watching things? So the courts have ruled that IT literally can have zero time off and can never travel, lose power, lose Internet, etc.?
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@JaredBusch said:
@scottalanmiller no matter how you feel about it, or what logic says, or how things are even wrote down, it does not matter.
NY law was very specific. I used to be a manager and had to be trained on it. If I attempted a conversation with an hourly employee who was on a break it restarted the break. If I forced them to accept a call, same thing.
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@Danp said:
http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER80.asp
http://www.dol.gov/whd/regs/compliance/whdfs22.htmThe workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place.
On duty being the key part here. Can you be fired for not working off duty? Doubtful. They'd have to say you were on duty.
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@Danp said:
http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER80.asp
http://www.dol.gov/whd/regs/compliance/whdfs22.htm*An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated. *
Here is the bits that matter. Firstly, "in most cases." Most cases are not like IT where you are expected to be fully working immediately. Most cases are also not like IT where "office premises" often involve the employee's home.
But the big thing is the additional constraints. Can you travel, drink, be incapacitated? No, not for IT on call normally, and if you cannot work another job. Those are major constraints.
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@scottalanmiller said:
NY law was very specific. I used to be a manager and had to be trained on it. If I attempted a conversation with an hourly employee who was on a break it restarted the break. If I forced them to accept a call, same thing.
Specific states can of course have more or less restrictive laws on the subject.
It also changes significantly when labor unions are in the picture. But you cannot apply your specific instance to the rest of the US.
A simple Google search results in more than one page saying almost exactly the same thing. That being, "it depends on the courts."
Example
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Here is more:
Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working.
When your phone is your desk, when your home is your desk... and you are regularly answering the phone (or reading emails presumably) you are working. The way that most people in IT are on call, seems very clear to be working by all the standards outlined above.
And in the case of the OP, the requirements that she continuously not be reachable but also be tracked and keep a specific device with her (this is far beyond leaving a number at which you can be reached) is beyond any of the criteria I see here for working.
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In places like NY there are additional things. Like sure, you can be on call, but if you get called and go to the office, the minimum non-negotiated work period is four hours. So there can be big compensation for on call events. Need to go power cycle a router? Two minutes of work is four hours of pay because there is no means of negotiating a lower time during an on call event.
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@scottalanmiller said:
But the big thing is the additional constraints. Can you travel, drink, be incapacitated? No, not for IT on call normally, and if you cannot work another job. Those are major constraints.
Those are major constraints in your opinion, not nessecarily the opinion of the courts.
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@JaredBusch said:
@scottalanmiller said:
But the big thing is the additional constraints. Can you travel, drink, be incapacitated? No, not for IT on call normally, and if you cannot work another job. Those are major constraints.
Those are major constraints in your opinion, not nessecarily the opinion of the courts.
And that's what matters.
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@JaredBusch said:
@scottalanmiller said:
But the big thing is the additional constraints. Can you travel, drink, be incapacitated? No, not for IT on call normally, and if you cannot work another job. Those are major constraints.
Those are major constraints in your opinion, not nessecarily the opinion of the courts.
The US is a lawless nation where EVERYTHING is opinion. There are no laws, that's just how US courts work. So that statement is always true. You can hack someone up in the middle of the street and a court can decide that being ugly was justification for being killed in cold blood. Welcome to the US.
But the law seems to read pretty clearly that the intent of the law is that if you are controlled, you are working. Sure, corrupt judges might decide to screw you, but they could do that without this ever coming up. In NY you can be arrested and jailed for being assaulted. Because the judge has full authority and is not bound by any law (literally). Texas is similar - if you are assaulted in your own home but are thrown out of it the police can arrest you for assault based solely on being the party found outside of the premises.
But the employment law reads as I'm describing extremely clearly. Especially when you realize that it reads this was for "on CALL" and making people continuously read all emails, even those that are not the emergency escalations, would push this dramatically to a point that isn't even covered here because it's so extremely "working." Getting called is "able to be reached", they never even talk about the extreme situation where you must remain logged in, and vigilantly connected to work because it is an order of magnitude beyond the grey area here.
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@scottalanmiller said:
In places like NY there are additional things. Like sure, you can be on call, but if you get called and go to the office, the minimum non-negotiated work period is four hours. So there can be big compensation for on call events. Need to go power cycle a router? Two minutes of work is four hours of pay because there is no means of negotiating a lower time during an on call event.
I worked for ADT Security back in the 1990's as an installer. While I specialized in the PC based building access control systems, I still had to take my turns on call out duty.
I was a member of IBEW Local 1 and the contract stated that if I answered the phone I was getting paid a minimum of 2 hours no matter what I did. Often it was a drive out to reset something and back home, still less than the minimum.
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So yes, corruption is rampant, especially in employment cases in the US. But legally, it seems pretty clear how it is supposed to work.
One of the things that seems to routinely set IT workers apart from most workers is in how helpless they tend to portray their own situation - that businesses have total control of you and you have no rights. Yet workers in other fields, often making less, don't feel this way and know that having their ability to work, sleep, etc. be taken away is clearly not mandated even in the US.
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@scottalanmiller said:
In places like NY there are additional things. Like sure, you can be on call, but if you get called and go to the office, the minimum non-negotiated work period is four hours. So there can be big compensation for on call events. Need to go power cycle a router? Two minutes of work is four hours of pay because there is no means of negotiating a lower time during an on call event.
You aren't allowed to be scheduled at a place of work for less than four hours, but I think most IT guys at small companies are basically considered to be always "on-call", which isn't fair. IT is a relatively new field compared to some professions, so I expect that over the next 10-20 years we'll see more and more laws specific to how IT works start to come into existence, which will apply to other professions that are changing how they function normally too.
