Skilled trades
Emergency plumbers: unpaid on-call nights and take-home vans
The short answer
If you carry the after-hours phone, must accept calls, keep a company van at home ready to roll, and must arrive within a set number of minutes, your on-call nights are very likely compensable “hours worked” under 29 C.F.R. § 785.17 rather than free availability. California is stricter and pays for time under employer control alone: Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015).
What the rotation looks like
Service plumbing shops run a nightly and weekend rotation: one tech holds the emergency line, must answer within a few rings, cannot decline dispatches, and must be at the customer's door inside a promised window. Companies advertise that window to customers while paying the technician nothing for holding it.
The Supreme Court long ago recognized that an employer may hire a worker simply to be ready: Armour & Co. v. Wantock, 323 U.S. 126 (1944). Whether readiness is paid depends on the severity of the restrictions under 29 C.F.R. § 785.17.
Take-home vans, tools, and commute time
Commuting in a company vehicle is generally not compensable by itself under the Employee Commuting Flexibility Act, 29 U.S.C. § 254(a), but loading, restocking, and performing required work before or after the commute can be. Travel from home to an emergency call outside regular hours is generally compensable under 29 C.F.R. § 785.36.
California diverges: employer-mandated conditions on a commute can make it hours worked, as the Supreme Court of California held for required exit searches in Frlekin v. Apple Inc., 8 Cal. 5th 1038 (2020), and for compelled travel in Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000).
Commission, flat rate, and the regular rate
Flat-rate and commission plumbers still get overtime unless a specific exemption applies; the commissions must be spread across the hours worked to compute the regular rate under 29 U.S.C. § 207(e) and 29 C.F.R. § 778.117. Piece-rate and flat-rate pay in California must separately compensate non-productive time and rest breaks under Cal. Lab. Code § 226.2.
Evidence and next steps
Dispatch software history, call-center recordings, van GPS, and the customer-facing response promise are the strongest proof of the restrictions you worked under. Where the employer kept no record of the hours it required, workers may prove them by representative evidence: Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016); 29 U.S.C. § 211(c). Retaliation for asserting these rights is separately unlawful under 29 U.S.C. § 215(a)(3).
Facts that usually decide these cases
- A promised arrival window advertised to customers
- No right to decline or trade a dispatch
- Take-home van kept stocked and available
- Frequent overnight callouts across the rotation
Weighed together under the framework of Owens v. Local No. 169, 971 F.2d 347 (9th Cir. 1992): Geographic restriction — how far you may travel while on call; Response time — how many minutes you have to answer or arrive; Call frequency — how often the phone actually rings; Personal interference — what the rotation stops you from doing; Trade or refusal rights — whether you can hand the shift off.
Frequently asked questions
- Does my after-hours phone shift count as work?
- It counts when the restrictions prevent effective personal use of the time under 29 C.F.R. § 785.17, and courts weigh response time, geography, and call frequency under Owens v. Local No. 169, 971 F.2d 347 (9th Cir. 1992). In California, control alone suffices under Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015).
- I'm paid flat rate per job. Do I still get overtime?
- Yes, unless a specific exemption applies; flat-rate and commission earnings are converted into a regular rate and overtime is owed on hours past 40 under 29 U.S.C. § 207(a) and 29 C.F.R. § 778.117. California also requires separate pay for non-productive time under Cal. Lab. Code § 226.2.
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