Employee wants pay for having to call in

Carrie Mason-Draffen

12:46 PM EST, February 15, 2008

DEAR CARRIE: I work for a large company that posts its work schedules on the Thursday before the next workweek. Those of us who aren't in the office at that time have to call in to find out when we should report for work.

Sometimes we are instructed to call back later. My question deals with compensation: If the company is ordering us to call, aren't we entitled to compensation for the time spent on the phone? And especially if we have to call back?

-- Fed Up

DEAR FED UP: Your company doesn't have to pay you because the time involved in calling in to check on a start time is "minimal," according to the U.S. Labor Department.

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"The time involved is minimal and there is really effectively no time worked that has to be compensated," said Irv Miljoner, who heads the department's Westbury office.

But that could change if you have to remain on the phone for long periods of time or if the company requires to you be on call.

"That sort of thing is beyond a simple phone call," Miljoner said, and would require payment for your time.

By the way: It's legal for an employer to change your schedule as you describe.

"It's one of the conditions of at-will employment," Miljoner said.

One thing employers can't do legally is to change the schedule to avoid paying overtime.

DEAR CARRIE: I am a registered nurse who works in a bill-auditing position. My company considers me exempt from overtime no matter what kind of work I perform. I have to work extra hours in data entry to help out a unit in the company. Based on those duties, I definitely don't believe I am exempt from overtime. Am I right?

-- Nursing a Beef

DEAR NURSING: This question is similar to the ones I tackled last week -- but it's also unusual for this column. That's because the questions I typically receive regarding the exempt-vs.-nonexempt question involve managerial exemptions, like the two queries I answered last week.

Your question is intriguing because you are a registered nurse who works in a non-nursing capacity. Normally, federal labor laws consider RNs exempt because they usually have a four-year degree and use specialized knowledge to carry out their tasks.

Still, as with the answers last week, whether an exemption comes into play depends on the employee's duties.

In the professional-exemption category, your primary duty must be the "performance of work requiring that advance knowledge," Miljoner said.

That work, in the eyes of federal labor laws, "has to be predominately intellectual in character" and include "a consistent exercise of discretion and judgment."

If your work in bill auditing requires you to apply your specialized knowledge as a nurse, and that is your primary duty, you may be exempt from overtime.

But, "if she is just going by a chart and applying a medical code to a billing situation, anybody can do that," Miljoner says.

I should also mention that for you to be considered exempt, your employer must pay you a salary, one that doesn't change even if you are late a couple of hours one day. Nonexempt employees would be docked for that time.

Miljoner said the misclassification of professional employees isn't uncommon. Because professionals have degrees, training and titles, some employers automatically assume the workers are exempt no matter what duties they perform, he says.

"It has to do with the duties, not the title," he says.

For more on the professional exemption, go to the Labor Department's Fact Sheet No. 17D at www.dol.gov/esa/regs/ compliance/whd/fairpay/ fs17d_professional.pdf.