Can a contractor be put “on call”?

Can I require a 1099 employee (contractor) to be “on call” 12 hours a day even if they are not required to work more than 8 hours per day?

Steve Duggan replies:

I think there is some confusion about this worker’s employment status. There is no such thing as a “1099 employee.” Employee wages are reported annually to the federal government via W-2. A contractor is not an employee, and not subject to the will of the “employer.” Nonemployee compensation is reported on a 1099. If a person is required to work 8 hours (or more) per day, or be on call for any length of time, that person is subject to the will of the employer and most likely would be found to be an employee by the IRS or any tax authority. You can have employees be “on call” for up to 12 hours, so long as they are otherwise free to go about their day, and are paid for the time they actually do work, including any overtime they work. I suggest that you consult with a local employment attorney to better understand your obligations as an employer under federal and state wage laws.

Posted 10-18-2016

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.


About the Author:

Steve Duggan graduated from the Law School at the University of Notre Dame while on active duty in the Air Force. He has extensive experience representing management litigating cases of wrongful termination, employment discrimination, and sexual harassment. Steve also has experience in all phases of administrative litigation of unfair labor practice charges, and class and individual complaints of employment discrimination. He has been an instructor of seminars for supervisors and managers on labor management relations and other personnel issues, and for lawyers in basic and advanced trial advocacy courses. Steve came on board with Fair Measures in 1998.