Hanlon Niemann Blog | A Freehold, New Jersey Law Firm

Lauren Bercik, Esq., a NJ Employment Law Attorney

On-call employees are turning into a growing liability risk for employers, as some are claiming that companies are restricting their freedom too much, and not paying them for it.

Employment lawyers say that such claims are popping up in larger wage-and-hour class actions, with on-call employees suing for unpaid overtime, alleging that their freedom has gotten so limited that they may as well be hourly employees.

In Gomez v. Lincare Inc., a California appellate court recently revived an overtime class action brought by on-call workers of an in-home respiratory services provider. The employees allege that they deserve compensation for the time spent on call dealing with customer questions by phone, as well as for time spent on call but not handling customer inquiries.

In Sweat v. Battelle Memorial Institute, a group of lab technicians in Utah is suing Battelle Memorial Institute, a science and technology development company, alleging that the company required them to be on call during their lunch break, mandating they be on company premises, in company provided clothing and available for work. The plaintiffs claim they should be compensated for that time.

In Walsh v. Apple Inc., a former network engineer for Apple claims that the computer giant failed to pay network support staff members for on-call time.

“It’s definitely triggering litigation,” employment attorneys agree. “What employers need to do is take a look at what restrictions they place on on-call time.”

The key for employers is to make sure they’re not overly restricting on-call employees’ freedom. The less freedom an employee has while on call, the higher the risk that the on-call time qualifies as paid time. “With the way wage-and-hour class actions are filed over issues everyday, if you’re not looking at this, a plaintiffs’ attorney will be.”

Employers need to revisit their on-call policies and consider relevant factors, including geographic restrictions — whether employees are required to be near the office, at home or near a land line; how quickly employees should respond to calls; and how many calls an employee actually receives while on call.

The trick is to make sure on-call employees have the flexibility to do what they want to do. “If you’re on call, and you’re free to go to a restaurant or go to a movie, or go play golf or tennis, that’s fine.” “But if you’re told, ‘you have to sit in your house and can’t leave,’ then you have to be paid for that time.”

For further information and advice in any employment law matter, do not hesitate to contact me at 732-863-9900, or lbercik@hnlawfirm.com.

Many employees do not realize that employers in New Jersey may have the right to regulate and prohibit personal lifestyle choices after work and during their private time unless the conduct falls within a clear cut constitutional privacy protection or meets a clear mandate of public policy protecting private lifestyle choices.  Generally, the prohibited conduct relates to extramarital affairs, romantic relationships among co-workers, free speech, smoking bans and other private lifestyle choices.    All employers and employees are cautioned that the scope of the prohibited conduct will be closely reviewed by the Courts in New Jersey.   New Jersey seems to follow (as customary) its own thoughts on permissible versus unpermissible conduct. 

In a leading case, the Court has indicated that while an employer is free to discharge an employee at will, the general rule must yield when an employer Aacts contrary to public policy in accordance with the leading New Jersey case of Pierce vs. Ortho@.  

Questions about what may or may not be permissible versus dischargable private behavior by an employer?  Lauren Bercik, Esq. handles the firm’s employment related issues.  She can be contacted at lbercik@hnlawfirm.com.

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A recent lawsuit filed by a law enforcement employee who failed to disclose his expunged convictions does not prohibit him from pursuing a workplace discrimination complaint against his employer for workplace harassment but the evidence of the convictions could be used to limit or potentially reduce economic damages.   In a widely anticipated decision by the New Jersey Supreme Court, the Court has ruled that even intentional withholdings of information by prospective employees which are later discovered by the employer is not a defense available to the employer if the employee is able to establish workplace violations actionable under the Law Against Discrimination (LAD).  The Court did rule however, that the evidence of the withheld information prior to employment could (if relevant and material to the outcome to the issues in dispute) serve as a basis for the employer to totally or partially avoid economic damages depending on the particular facts of the case.   This decision clarifies earlier court decisions relating to employees bringing actions against employers knowing that they had previously failed to disclose otherwise material and important information about their private life.   

For more information on this decision, contact Lauren Bercik, Esq. at lbercik@hnlawfirm.com