On-call programs are one of the three most common areas (after independent contractor/employee misclassifications and salary/overtime issues) that tech companies, including WISPs, get tripped up on regularly. It is possible, but certainly not guaranteed, that you can pay someone a lower “on call” rate or some flat rate for being “on call.” Remember that it does not matter AT ALL if you and your employee/contractor have agreed on how to handle pay/on-call/overtime. If your pay plan violates state and federal law, you are still liable (BOTH personally AND as a business—no hiding behind the corporate veil here) and state and federal agencies can still audit and fine you, even if your employee doesn’t care!
Speaking generally, under the federal Fair Labor Standards Act, they key issue in determining whether an employee is "working" while on call is whether the employee is "engaged to wait" or "waiting to be engaged." Generally speaking, if an employee is required to somewhere specific during certain hours and is not free to leave, then even if the employee spends the time sleeping or reading a magazine the time is considered work time. (There is an exception to this rule for employees with shifts of at least 24 hours - in that case, an employer can, by agreement with the employee, deduct no more than 8 hours for sleeping time.) On the other hand, if an employee merely has to be available to respond to a call by cell phone, or to report to a worksite within a reasonable period of time, but is otherwise legitimately free to go about his or her personal activities, then the time will not be considered work time. Of course, any time spent actually responding to calls that do come in would be considered work time and would have to be compensated as such. Exactly where this line is drawn can be fuzzy. For example, if an employee is expected to report to work within 15 minutes of receiving an emergency call, that short response time may severely limit the employee's ability to go about his or her personal activities, and may result in the on-call time being considered work time. Exactly how long the response time would need to be, however, will depend upon various factors such as location and commuting distances. Please make sure that you’ve had someone review your on-call program, along with any “contractor” relationships or salary pay plans you have. If you don’t have a written legal opinion, please get one. Even small errors here can add up quickly and result in massive liability for your WISP. Doug Douglas A. Hass Associate 312.786.6502 d...@franczek.com Franczek Radelet P.C. Celebrating 20 Years | 1994-2014 300 South Wacker Drive Suite 3400 Chicago, IL 60606 312.986.0300 - Main 312.986.9192 - Fax www.franczek.com<http://www.franczek.com/> Franczek Radelet is committed to sustainability - please consider the environment before printing this email ________________________________ Circular 230 Disclosure: Under requirements imposed by the Internal Revenue Service, we inform you that, unless specifically stated otherwise, any federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purposes of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or tax-related matter herein. ________________________________ For more information about Franczek Radelet P.C., please visit franczek.com. The information contained in this e-mail message or any attachment may be confidential and/or privileged, and is intended only for the use of the named recipient. If you are not the named recipient of this message, you are hereby notified that any dissemination, distribution, or copying of this message or any attachment thereto, is strictly prohibited. If you have received this message in error, please contact the sender and delete all copies. ________________________________ From: wireless-boun...@wispa.org [mailto:wireless-boun...@wispa.org] On Behalf Of James Howard Sent: Thursday, January 23, 2014 8:56 AM To: WISPA General List Subject: Re: [WISPA] remote employees We have a somewhat similar situation. One of our CSRs moved to Texas (actually moved back since was originally from Texas) last year. We cover our after-hours and weekend support through a rotating schedule of all employees who want to participate in it (on-call is paid separate from “work” pay). We didn’t keep her as an employee when she moved but wrote a contract with her to continue to cover the after-hour shifts that she was covering before she moved. We pay her a set rate per shift whether she gets any calls or not (just like we do with our employees who cover any of the after-hour shifts). We give her VPN access to our systems but she has to provide her own equipment to connect and her own phone line to call customers. Just make sure that if you make them a “contractor” that they actually fit under that definition and it doesn’t come back to bite you later on. Either way (employee vs contractor) you still have no guarantee that the person isn’t going to sit and play games all day do you? Do you have that guarantee when he was sitting at your office? If I was having a person answer live calls (we just have her do call backs for after-hours support) I would provide a VoIP phone connected to our asterisk PBX though. James Howard LiteWire Internet Services, Inc. From: wireless-boun...@wispa.org<mailto:wireless-boun...@wispa.org> [mailto:wireless-boun...@wispa.org] On Behalf Of heith petersen Sent: Wednesday, January 22, 2014 7:27 PM To: WISPA General List Subject: [WISPA] remote employees I have a tech who does real light field work, who mostly works at a desk in my office. He usually handles the customer BS, like phone tech support above what we let our held desk handle, as well as radio configuration and updates and support to my field techs. Due to recent personal issues he is moving 4 hours away. We figure, since he doesn’t have a job yet and can get good high speed service, we might try to do a gig with us remotely. I would tunnel him into the net, access to billing, and a VoIP phone to our system, basically use him just like I do now, just no physical presence. Anyone else doing this or have past experience with this? If so, was it positive or total nightmare? We are trying to figure out how to base compensation. Right now he is hourly, I can see time tracking could be a pain. In reality he could just sit there and play solitaire all day if I don’t have any calls for him or any network upgrades. Anyways I appreciate your thoughts. I lean on him pretty hard to take care of BS that I shouldn’t have to deal with. Without him I see some pretty long days ahead. And I cant afford to keep a field tech in the office, though I have a guy that would rather sit on ass and talk to customers as opposed to doing field work. thanks heith ________________________________ Total Control Panel Login<https://asp.reflexion.net/login?domain=litewire.net> To: ja...@litewire.net<https://asp.reflexion.net/address-properties?aID=242260993&domain=litewire.net> From: wireless-boun...@wispa.org<https://asp.reflexion.net/address-properties?aID=1870493402&domain=litewire.net> Message Score: 1 High (60): Pass My Spam Blocking Level: High Medium (75): Pass Low (90): Pass Block<https://asp.reflexion.net/FooterAction?ver=2&bl-sender-address=1&rID=242260993&aID=1870493402&domain=litewire.net> this sender / Block<https://asp.reflexion.net/FooterAction?ver=2&ent=1&bl-sender-address=1&rID=242260993&aID=1870493402&domain=litewire.net> this sender enterprise-wide Block<https://asp.reflexion.net/FooterAction?ver=2&bl-sender-domain=1&rID=242260993&aID=1870493402&domain=litewire.net> wispa.org / Block<https://asp.reflexion.net/FooterAction?ver=2&ent=1&bl-sender-domain=1&rID=242260993&aID=1870493402&domain=litewire.net> wispa.org enterprise-wide This message was delivered because the content filter score did not exceed your filter level.
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