Ask the Lawyer

Employment Law

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Q: During the bad weather this past winter my employer paid for me to stay in a hotel so I could be near the office. While I appreciated the thought, I feel I should be paid overtime for the extra hours I was away from my family. I also feel I should have been given the option to go home without a risk to my salary if bad weather kept me from coming in to the office.

A: Unless the employer has a policy to the contrary, periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked.(29 C.F.R. § 785.16). In all likelihood, you would not be entitled to overtime for time spent overnight in a hotel if during your stay you were completely relieved from all job responsibilities. On the other hand, when an on-call employee is required to be near the workplace and is only given a short break, the employee is engaged to wait, and is considered “on duty”. (29 C.F.R. § 785.15). For example, a stenographer who reads a book while waiting for dictation is considered on duty. In such cases, the employee must be compensated for this time.

Thus, generally speaking, even if an employee is "on call" but is free to use his time for his own purposes (go to the mall, go to the park with the kids), then the time probably will not be considered "hours worked." If however, the employee is not free to use the time as he or she wishes, the "on call" time may be compensable. Every "on call" situation and the factors applied to that situation are different. Therefore, if you have any questions regarding whether your particular "on call" situation is compensable, contact an employment lawyer to discuss the issue.

Assuming you are a non-exempt employee (since you inquired about overtime), you would not get paid if the office is closed or if you choose not to come into work.  Non-exempt employees are only paid for time spent working.

Joni Haviva Kletter joined Meyer, Suozzi, English & Klein, P.C. in 2007 as an Associate of the Labor and Employment Law practice in the firm's New York City office. Ms. Kletter helps litigate numerous employment related claims and provides employment advice to employees, executives, professionals and companies. She has experience in cases involving discrimination, harassment, FMLA, misclassification, separation agreements, employment contracts,  restrictive covenants and employee benefits. Ms. Kletter also advises employers on best practices and compliance issues, and provides anti-discrimination trainings.

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