Episode 210: Waiting and On-Call Times

Do you want or have an employee standing by to answer their phone on the weekends to handle emergency scheduling? (or any other task). What you need to know is how you make that request and structure payment, your SOP, and most importantly, address it in your employee handbook is regulated by the feds and applies to all employers. Get it wrong, and you may have to pay for every hour of every weekend, including overtime if the employee has ever been “on call.” Listen to Paul and senior solution center advisor Michelle Richard discuss waiting vs. on-call times. Learn how to ensure you and your practice stay legally compliant while having your employees by their phones on their off days.

Voice Over: You’re about to listen to another episode of What The Hell Just Happened?! Join Paul Edwwards and his guests as they discuss and sometimes even solve some interesting HR problems. 

Paul: And… I’m gonna go off the rails sometimes and talk about whatever I want. 

Michelle: Hey there, Paul. How you doing?

Paul: I’m doing good. You should know… that right now… I’m waiting.

Michelle: Oh, boy, do I have to pay ya? [Laughs]

Paul: I think that’s the question. I’ve been waiting for this podcast to start, and I think we need to decide whether or not I should have been paid.

Michelle: [Laughs] Oh, boy. You guys are going to make sense of this once we get into it. [Laughs]

Paul: So that’s what our topic is today, right?

Michelle: Yep.

Paul: Waiting time.

Michelle: Waiting time… on call time… You have an employee who has- a not a pager anymore- I was about to throw a really old example out there with the pager. Yep. Yep. It’s still out there. All right.

Paul: She sounds so young for someone who is in their mid-eighties.

Michelle: Oh, my gosh. Thank you. I also look very young for someone who’s in their mid eighties [laughs].

Paul: Oh don’t worry, all this is going to be cut out. Our one listener’s never going to hear any of it.

Michelle: Oh, yeah, out of all of this. We definitely need to keep it. They need to know what goes on over here. At CEDR. But, in all seriousness, on call time, we want to talk about that. If you have an employee that has their cell phone on the weekend, the practice cell phone, do you have to pay them?

Paul: I think it’s a great question, and we get it all the time. And I guess you hear that on the podcast so often and I’m always like, we get this question all the time.

Michelle: But we do.

Paul: Look, the scenario we typically have is that we have a practice. Could be a dental practice. Could be a surgeon. I’ve- I’ve had to answer this question for surgeons, for their teams. Anyway, we have a business medical practice that wants someone to answer the phones on the weekend on behalf of the business. That’s the- that’s the scenario. So how does that work? Right?

Michelle: Yep. 

Paul: You know, the best one of the best ways I love to look at this is I think back to, I think outside of medical and I go to something that everybody can identify with and that’s do you need a plumber or you need your AC fixed? By the way, if you live in Arizona, you can really identify with that second thing. So in either of those instances, you know that there’s trucks drive around and those trucks say, call us anytime. 24/seven, and we’ll have someone at your house in 10 minutes, guaranteed.

Michelle: That’s a great example.

Paul: It is a good example. So let’s just talk about those people just for a minute, okay? If they have a plumber sitting at the house and he or she must answer the call coming in from the, from the business and be at your house within 20 minutes, that means that that person, that, that employee, that plumber can not do anything else.

Michelle: Yes. And that is called being engaged to wait.

Paul: Being engaged to wait.

Michelle: And you know, a fun way of putting this is if that individual can’t drink with their friends, can’t take a nap, can’t, you know, without worrying about, “oh, if I get a call, I need to be there in a short period of time”. 

Paul: Turn the ringer off…

Michelle: That that’s the key here, right? Is how much control do you have on that individual during their quote unquote day off or quote unquote on call day. Right? Isn’t that what it really comes down to? So asking some questions is really important because there’s never a black or white answer here. Right. I mean, if there is, it’s a great phone call and I love it. But sometimes- sometimes we have to dig in a little bit more.

We have to gather some more facts. And so, you know, ask yourself a few things. How restricted are they during during their on call hours? Can they engage in personal activities? How many calls is this person likely to receive if they’re getting a call having to go in you know, and fix the AC, go in into your medical practice, help a patient, and then they go home and then they get called again and they go home and they get called again.

Paul: Oh, I see where you’re going with that. Yeah, yeah. 

Michelle: So, you know, do you have to pay them for the in between time?

Paul: Oh, let me use that- what you just said. 

Michelle: Okay. 

Paul: So I want to use that in a let’s just say you have a dental practice that is answering the phones on the weekend for whatever reason. And you have someone who we would actually say is not engaged to wait. We’re going to get into that scenario. So just for everybody listening for, you know, Michelle and I are saying that they’re not engaged to way and we’re going to talk about how you free someone up.

The point that you’re making, though, is that if they have to go in, if they’re not really engaged to wait and they have to go in at nine and again at 11:15, and then again at two and then again at four, and then again that night at 8:30, you have a whole other H.R. problem going on because they’re actually, by virtue of what’s happening, they are being engaged two wait.

No one would argue that their time is free for them based on what happened that day. Let’s put it on the other side of that. One call comes in at 1:15 that afternoon and they, your employee answers that they don’t even have to go in. All they had to do was verify what was going on. Call you… doctor.

That’s who you is. Call. Call you doctor. You say, “yep. There a patient. Let’s prescribe him some antibiotics because I can’t even work on the tooth until they’ve been on antibiotics for three days”. And you call it in. And that’s the time that you’ve spent working.

Michelle: Exactly.

Paul: That’s a big difference between the two, the two scenarios that we just described. But both in both instances, employees got to get paid.

Michelle: Exactly. It’s just how much time are you paying them for? So let’s you know and I appreciate you simplifying that, Paul, because.

Paul: I’m not sure I simplified it, but… [laughs]

Michelle: But, you know, it’s complicated in itself, but really breaking it down, right? Like if their time is being controlled you’re more than likely needing to pay them. And let’s talk about how you free it up. So that’s always the next question is, “okay, Michelle, you just told me that I have to pay them. Well, I don’t really have all this time to pay in my budget. I just really need someone who’s willing to at some point call our patient back to let them know we got their message”. There we go. That’s that’s that’s a little better, right? 

Paul: Thats a little bit better. We’re still to have to pay for the time they call back to do it, to leave that message or acknowledge it.

Michelle: Yep. They need to track their time. Right. And they need to report it to you.

Paul: Let me ask… Can we pay them and say, gift cards or say Chick-Fil-A’s?

Michelle: Oh, Paul, you were reading my mind in Chick-Fil-A’s. [Laughs] Those currency are not acceptable per the DOL.

Paul: We’ll have to find it. You’ll have to find our podcast on that. But you cannot pay people in chicken.

Michelle: Oh, yes, you cannot! [laughs[

Paul: You remember that? [laughs]

Michelle: Yes, I do! [laughs] A lot coming back to me. Okay.

Paul: [laughs] She’s like, “why is he asking me if we can pay in chicken everybody?”

Michelle: I think he knows the answer to this question. He’s in charge of the company! [laughs] But you can actually… So this important thing. So pay them with with money that goes into their bank account, right? 

Paul: Track hours. 

Michelle: Track their hours, pay them accordingly. The next question is how? How much do I pay them? Do I have to pay them at their normal rate? Can I pay them at a different rate?

Paul: Yep. You could pay them at a different rate. You could lower their rate of pay if you were paying them more than minimum wage. But I’m going to tell you this, that’s not the way to get somebody to answer the phone. And so the way I’ve seen this system work and by the way, I’m not advocating for any system and I just want to disclaim something here on the podcast: I’m going to describe a way that you can do this, but you darn well better not do it on your own because in different states and different circumstances, this works different ways. 

But in general, the best system I’ve seen is is first of all, we made sure that it’s just waiting time. They’re not engaged. And the way we do that is that H.R. professionals, we write a policy which which deals with this issue that says we would like for when you’re at home and you have voluntarily decided to take the calls, we will pay you.

And it’s generally we’ll pay you your hourly pay and if anything occurs with the call. And again, I’m being very general, will be more specific in a policy. We’ll give you a bonus for having taken that call. So it incentivizes someone to take that call. And in some instances, like for the surgeon they pay not time and a half, not double time, but two and a half times.

Michelle: Wow. 

Paul: So if you get called on the weekend and you come in, will will pay you two and a half times. And so what people are doing is they’re raising their hand for the volunteer weekend hours and they’re raising their hand to be sober and they’re raising their hand to be available. And they’re doing all those things that aren’t being put on them.

Michelle: Right. 

Paul: It’s not- so they’re not really engaged. They’re deciding that they want to do it.  And we also have to include in the policy that if you’re driving, don’t answer that phone again, guys. Just you’ve got to think about this. When you write a policy, you put a program in place, we don’t answer the phone. If you if you want to go to a movie, you don’t have to answer.

Just please, if you’re going to answer it soon as you get out of the movie, if your kids are screaming, crying in the background, don’t- you don’t have to pick up the phone right that second. These are all messages that say that we’re going to pay you for the time that you’re actually working and you can choose to answer the phone if it’s the appropriate time to answer the phone. And you can take a heartbeat and answer the phone at the right time.

Michelle: Yes. Yeah.

Paul: Does that make sense?

Michelle: It does. It makes-

Paul: Think everybody listening is going to get that?

Michelle: I mean, I hope so. I think the I think this is a complicated matter at times. There’s always unique facts that we need to consider. But that’s a really good generalization of it for, you know, just to kind of try to apply that to whatever situation you’re facing and the one thing I wanted to just touch on real quick is you want to make sure that if they’re engaging in their normal core functions.

Paul: Yep… you mean?

Michelle: You don’t reduce their pay.

Paul: Gotcha. 

Michelle: But if you know, if they’re hygienists, for example, and you know, it’s not usually their job to just take phone calls and sketch security cleaning.

Paul: Yeah.

Michelle: Yeah, exactly. You know, that’s not normal for them to be doing that. Maybe on the weekend.

Paul: They may want to make some extra money by being the designated person.

Michelle: Exactly. You probably don’t want to pay them $65 an hour to do that. You can pay them at a lesser agreed upon rate. So yeah. So there’s, there’s ways that you can do this without breaking the bank and staying compliant.

Paul: It and it does start with a program understanding these rules and putting a good written policy in place that lets them know what they can and can’t do.

Michelle: And it counts towards overtime…

Paul: And it counts towards overtime.

Michelle: Throw that out there y’all.

Paul: All hours that are work count towards overtime and again once again can’t pay them and chicken or gift cards you have to pay them and you have to track their time. Yes.

Michelle: What’s one and a half times the rate of a chicken? Whoever can answer this for us- [laughs]

Paul: It’s- a wait a minute. I’m doing- no- I can’t do that math. All right. This was a really good subject. It comes up often and it’s something that, you know, I think people need more information on. Thanks!

Michelle: Thank you.

Voice Over: Thanks for joining us for this week’s episode of What The Hell Just Happened? do Paul a favor; share this with your network. If you have an HR issue or a question, you’d like us to discuss on this show, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join the private Facebook group, HR Base Camp, or visit HRbasecamp.com. Make sure you tune in next week. And remember: better workplaces make better lives. 

Dec 27, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance based on applicable local, state and/or federal U.S. employment law that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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