How to Deal

Working Around the Clock

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By Lily Garcia
Special to washingtonpost.com
Wednesday, May 30, 2007; 3:26 PM

Does an employer have the legal right to change a worker's job description from "regular" day job to a mandatory 24-hour job that includes being on call all night?

Your employer may legally change the hours you are required to work based on business needs. Unless you suspect that the change in your schedule was motivated by a desire to harass or discriminate against you, your choices are unfortunately limited to staying or leaving your job.

In your situation -- where you are being required to work odd and long hours -- it is nevertheless wise for you to become informed about your wage and hour rights. If I were in your shoes, my main concern would be ensuring that I am legally compensated for overtime and on-call time.

The Fair Labor Standards Act (FLSA) is the federal law that imposes requirements on employers related to wages and hours worked, including the requirement that employers pay time and one-half for work performed beyond 40 hours per week.

Your employer must follow FLSA if it employs at least two people and does at least $500,000 in business annually; if it is a hospital or provides medical or nursing care for residents; is a school or preschool; or is a government agency.

FLSA also covers workers to whom the above doesn't apply if work involves commerce between states, such as the production of goods that will be transported between states, or regular phone calls to people located in other states.

Finally, you would be covered by FLSA if you are a domestic worker, such as a babysitter or a housekeeper.

In other words, the chances are good that you are protected by FLSA. Further, most states have promulgated FLSA-like laws to regulate the hours employees work and what they are paid, so it is possible that your employer is covered by state law even if FLSA does not apply.

FLSA does not impose any limitation on the number of hours you may be required to work per week. The law only requires that you be appropriately compensated for the hours that you do work.

Under FLSA, your employer must pay you regular wages or overtime not only for your scheduled hours, but also for time that you are "suffered or permitted to work." What this means is that you must be paid for work that you were required or allowed to perform -- even if it is outside of your normal shift.

Whether you must be paid overtime for your on-call period depends upon how restricted you are during that time. If you are required to remain on your employer's premises while on call, you would most likely be entitled to overtime. If, however, you are only required to carry a pager with you and are not required to otherwise restrict your activities, you would probably not be entitled to overtime.

FLSA is enforced by the Wage and Hour Division of the Department of Labor. For more information, visit http://www.wagehour.dol.gov or call 1-866-4USWAGE (1-866-487-9243). The Department of Labor can also provide information on the enforcement authority for your state's wage and hour law.

Lily Garcia has offered employment law and human resources advice to companies of all sizes for 10 years. To submit a question, e-mail lilymgarcia@gmail.com. We reserve the right to edit submitted questions for length and clarity and cannot guarantee that all questions will be answered.


© 2007 The Washington Post Company

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