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Employer Changed On-Call Status

by Richard

(Grass Valley, CA)

I work for a propane company in Northern California, that requires it’s employees to be on-call after hours. The schedule was, you were on-call after hours and weekends for one full week, every 4 or 5 weeks. Just recently June 6th, 2014, my employer changed the on-call policy to require just the drivers to be on call effective July 1st, 2014. That now puts me (a driver) on call 24hrs a day for a week at a time every other week. That is two weeks every month, or six months out of the year. We are not allowed to consume any alcoholic beverages while we are on-call, nor be more than an hour away during our on-call period. I find this unreasonable, as the other employees do not have to be on-call (there are only two drivers). I am required to carry a pager and only get paid if I respond to a call. I do not get paid any “stand-by” time. My employer has threatened termination if I do not agree with their new policies. I am considering quitting this job, because my employer has so-intolerably changed my job duties that it would have compelled any reasonable employee to soon resign. Should I get fired or quit? What position would help me collect unemployment benefits? Thank You.

Hi,

Here’s how I would see it if I were the employee.

I think you should see if you have a leg to stand on, or a right to legitimately complain about the change in conditions and terms to the employer first (documented of course). I’d also want to make sure I could back up my complaint with something I would think is addressed in the FLSA, or better still California labor laws.

As for unemployment benefits – If you quit, you would be better off if you exercise your employee right first. Then, depending on the employer’s response, you may be able to base your good cause on those efforts, and actually prove you exhausted alternatives to quitting to meet your burden of good cause.

I didn’t read anything in your question to make me think you have good cause at this point, because you are supposed to prove your desire to work by trying to save your job. That often requires good an thorough documentation of your efforts and an employer response.

Then if you are fired for failing to go along with something deemed to be a “reasonable” directive from your employer, you would have to show you were not insubordinate, but acting reasonably, per CA labor law.

That the this might interfere’s with your ability to have a drink every other week, seems to me, a wholly irrelevant point. But I would certainly focus on the lack of any additional compensation for 24/7 on call duty by at least filing a wage complaint and allowing the state to make a ruling on that first.

Comments for Employer Changed On-Call Status
Jul 19, 2014 More details

by: Anonymous


“I’d also want to make sure I could back up my complaint with something I would think is addressed in the FLSA, or better still California labor laws”.

This is what started it all, I told my employer that their changes violated state Labor Law, this sent them into a fit, they said they did not have to pay me travel time to respond after hours. If I received a call-out after regular work hours, I was to drive my personal vehicle to the work place, then punch in and take a company vehicle to the job site, complete the job, then return to the work place, then punch out. I was to receive no pay for drive time or for time spent on the phone with the customer. Just for the time actually on the clock. I pointed out the Labor Codes regarding stand-by and after hours call-out and we got into a huge argument and the employer said I was wrong and that they would not pay any stand-by time, and that the labor board was wrong. At the end of our heated discussion, the employer removed all the other employee from the on-call program except the two drivers (and I’m one), almost like some kind of punishment or retribution for mentioning the labor laws. I was told by the employer that it was to save the company money. I was also told that I either accept the new terms or I no longer work here. By the way, I never received anything in writing, just an oral change to my employment conditions.
I need help, the employer wants another meeting to discuss my disagreement to their new on-call policy in two weeks! I do not agree to the new policy, neither does the other driver, but he won’t say anything because he told me he is afraid of losing his job.

If it were me, I’d file the wage complaint before they have a chance to fire you and when discussing this with the employer be specific, it might be wise to document before the meeting the new terms and conditions verbally described by the employer to you .. since they aren’t documenting this change .. seems someone should.

After the meeting an email to clarify your understanding of whatever happens .. probably wouldn’t hurt either.

And you might want to go armed with your wage complaint and printed copy of the section, of specific CA code you filed the wage complaint over .. so they know, you know.

Also, if it were me, I might just say .. ya, I’ll do it, but I want you to know, I disagree and have filed a wage complaint so this can be resolved per what the law says. This gives your employer more than ample opportunity to NOT retaliate and fire you in retaliation for filing a wage complaint, or have the audacity to expect to be paid for every hour you work in the best interests of the employer, or to spend your own money working for the employer.

You are a non-exempt employee .. aren’t you?

Jul 19, 2014 non-exempt employee

by: Anonymous


You are a non-exempt employee .. aren’t you?

Yes, I am a non-exempt employee and also have not signed any papers relating to the new changes to the On-call policy. I never even gave a verbal agreement. The policy was orally changed by management and I guess, was supposed to be accepted by the employees.

Well Anonymous employee in California, these kind of changes are accepted by employees everyday in this country out of desperation to remain employed and without any question, or forethought given to whether the change might be some sort of violation of their rights under federal, or state labor laws or even a hidden purpose for the change.

And then the violations go unnoticed by compliance authorities until one, or a small group of employees feel like it time to not feel like they are over a barrel with no recourse.

Not all states have their own department of labor for an employee to go, therefore, why I offered both links to the Federal minimum protection of the FLSA (Fair Labor Standards Act) and the CA labor law website.

California labor law is complicated and can be even more protective that federal law which would prevail in a state like Florida.

I wish you luck, because if I was a non-exempt employee and had to be on call 24/7 every other week with no additional compensation for being on call, I’d check into my rights to.

PS, none of this is intended to be legal advice and here’s the disclaimer

I’d like to know how your dispute over wages turns out.

Have you considered calling a California employment attorney to get a real answer?
Aug 18, 2014 I was fired

by: Anonymous


Well, I met with my employer before I had a chance to file any wage claim. We met and discussed my disagreement to their new on-call policy. Basically it went like this: I told them that I did not agree to the new policy, so my employer said to “turn in all my company issued gear” and “there is the door” as he pointed to the door. So I politely turned in all my issued gear and left the building. I got first hand info from an employee I worked with at the business and he said that the boss is telling everyone I quit! I did not quit. Now I have a telephone interview with EDD for my initial unemployment qualification. Is there any way to make it clear to the EDD interviewer that I did not quit?

Just tell the story simply, you were having a discussion about a new policy and when you told the employer you did not agree, he asked for your equipment and showed you the door.

Depending on the policy .. it could be argued as a constructive quit, or potentially, a constructed discharge.

I’d still file the wage complaint.