When Beeper Beeps, Standby Nurse Should Answer It

Q: I am a nurse who works on call that is, standby--from 7 a.m. to 3 p.m. Can I be reprimanded for not answering my beeper before 7 a.m.?

--D.B., Newport Beach

A: Yes, at least to the extent that your employer notified you that you might be needed before 7 a.m. There is no law restricting the hours that an employer may require an employee to be available for work, with the exception that employees must be given one day off per week.

If you are needed for duty outside your normal work schedule, your employer can legally require that you show up for work, and you can be terminated or disciplined for your failure to do so.

Of course, your employer must pay you for time worked outside your normal schedule, and this will ordinarily amount to overtime.

Whether your employer has to pay you for being on call outside your normal schedule is another matter, however.

There are two kinds of standby time recognized by the wage and hour laws: “controlled standby,” where you must remain on your employer’s premises or so close to it that you cannot use the time for your own business, and “uncontrolled standby,” where you can generally use the time for your own purposes if not called to work.

Controlled standby is considered hours worked and must be paid. Uncontrolled standby is not.

Under current interpretations of law, you would be considered on uncontrolled standby if all you are required to do is carry a beeper. So it appears that you would not be entitled to be paid for this time unless you are actually called to work.

--James J. McDonald Jr., Attorney, Fisher & Phillips, Labor law instructor UC Irvine

20% Pay Cut for Firm Has Worker Wondering

Q: Two years ago, our employer decided to cut 20% of all salaries because of the recession. He promised to restore the 20% cut as soon as the economy picked up.

To date, we are still working for 20% less pay, and our employer is remodeling the building that he owns. Also, we are required to come in on our days off (Saturdays) to learn how to operate new computers he purchased.

Is it legal for him to cut our pay and use the money for other purposes to benefit his own company? Though all of us are salaried, is it legal for him to make it mandatory that we have to learn how to operate new equipment on our days off without pay?

--C.N., Long Beach

A: Oral contracts are very difficult to enforce because of vagueness problems. One person says a statement is a promise that means one thing, and to someone else, it means something different. To you employees, you feel that promises by the employer have not been fulfilled. You were led on at work for several years with the promised hope that things would improve.

The employer probably feels that any promises that were made were based upon his or her definition of when the economy would “pick up.” To the employer, the economy may not have picked up sufficiently to warrant restoration of pay. In fact, one of the reasons for the cut in pay was perhaps to provide sufficient funds to remodel the building.

Also, the employer may argue that the Employee Handbook limits promises that the employer can make. Many handbooks state that unless promises regarding pay or other changes of employment are made in writing and signed by the president, they are not enforceable. They would also argue that if you are “at-will” employees, subject to termination at the whim of the employer, then, likewise, your pay can be adjusted at the employer’s discretion.

Simply being salaried workers does not make you exempt from overtime. Extra work performed on Saturdays to learn how to operate the new computers would not entitle you to extra overtime compensation if you are truly “exempt.” Even though being salaried is one of the factors of being exempt, it is not the only one or even the most important one. Many employers incorrectly classify employees as exempt because they are salaried when the employees are really non-exempt and subject to overtime. Look to Shop Talk answers in previous weeks for advice on overtime or review the pamphlet offered by The Times on this subject.

I would not suggest quitting unless you have another job available. But as a practical matter, there are several things that you can do. You could complain to the owner yourself, but this would carry the risk of being branded a troublemaker. You could have a group of employees complain together to the employer without identifying you as the “leader of the pack.” You could request that the employer let you work a four-day week because your pay had been cut 20%. You could draft a respectful letter to the employer raising these issues as concerns, but not particularly as demands. If the promises are in writing and had further details, you would have a better case.

--Don D. Sessions, Employee rights attorney, Mission Viejo

Pension Plan’s ‘Magic 75’ Has Employee Guessing

Q: My employer’s contributory pension plan has a “Rule of 75.” If an employee participating in the plan is laid off before his or her age plus years of company service totals 75, the pension payout is actuarially reduced. The payout is also reduced if the employee is under 55 years of age.

I am over 55 years old, but will not achieve the necessary 75 points, also known as “Magic 75,” until 18 months from now. My company is currently downsizing. My question is: Are there any laws protecting a person in my situation from layoff until I can achieve Magic 75?

--K.B., Los Alamitos

A: Certain protections exist for employees who face layoffs during an employer’s downsizing efforts. First an employer cannot terminate or lay off an employee over the age of 40 solely based on the employee’s age.

Further, the Federal Employee Retirement Income Security Act prohibits layoffs designed to interfere and deprive an employee of pension benefits. However, an employer can legally downsize its organization even if the impact of the layoff does affect you and your benefits.

The issue that must be resolved is whether this is a genuine downsizing, an attempt to eliminate older employees or an attempt to avoid pension plan obligations.

--William H. Hackel III, Employment law attorney, Spray, Gould & Bowers