Does a per diem based job still have to meet minimum wage laws?

UPDATED: Oct 1, 2022

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Does a per diem based job still have to meet minimum wage laws?

I work for a cornea transplant company in California as a cornea recovery technician. We work at a Per Diem rate and are scheduled on 8-hour on-call shifts. We only get paid if we get called. Once were called, we are on the clock and get paid 2 weeks later. Here’s the tricky part, I have not gotten any calls for a month. But they expect me to be on-call for an entire 8 hours, and be readily

available to drop anything Im doing and leave to harvest corneas during my shift. There are times I can’t go out to buy groceries, cook a long meal or do anything during that timeframe because I’m on call. They also require that you sign up for a minimum of 6 shifts 48 hours per week of this. I’ve found myself waiting at home for 8 hours a day for an entire month to never work and never get paid. Is this acceptable from a legal standpoint?

Asked on January 19, 2018 under Employment Labor Law, California


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Yes, it is legal: on-call time is not work time, because even though it obviously puts limitations on you (the need to be able to respond during a set time frame), you are not working--you can cook or eat (even if you're doing a long or elaborate meal), clean or wash or do chores, watch TV, sleep, be on social media, have friends over, etc. Despite the limitations, the time is sufficiently your own that you do not need to be paid for it.

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