ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division (Division or ALJD) for a contested case hearing pursuant to
S.C. Code Ann. §§ 41-10-40 and 41-10-80 (Supp. 1999) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 1999). The South
Carolina Department of Labor, Licensing and Regulation - Division of Labor (Department) contends that the Respondent
Summerville Medical Center failed to pay wages due to one of its employees in violation of S.C. Code Ann. § 41-10-40(D)
(Supp. 1999). More specifically, the Department alleges that the employee was compelled to be at the Medical Center for
twenty-four hours and was only paid One and 50/hundredths ($1.50) Dollars per hour instead of her regular wages.
Pursuant to S.C. Code Ann. § 41-10-80 (Supp. 1999), the Department seeks the levy of a fine of Seventy-five ($75.00)
Dollars against the Respondent. A hearing on this matter was held on June 14, 2000 at the offices of the Division in
Columbia, South Carolina.
The issues before the Division are: (1) whether the Respondent violated S.C. Code Ann. § 41-10-40, and (2) if so, whether a
fine of Seventy-five ($75.00) Dollars is the appropriate sanction for this violation. Based on the following Findings of Fact
and Conclusions of Law, I find that the Respondent did not violate S.C. Code Ann. § 41-10-40(D) (Supp. 1999).
Therefore, the imposition of the Seventy-five ($75.00) Dollar fine is dismissed.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of persuasion by the parties, I make the following Findings of Fact by a preponderance of the
evidence:
1. Notice of the date, time, place and nature of this hearing was timely and properly given to all parties.
2. Summerville Medical Center (Medical Center) is a hospital located in Summerville, South Carolina. Lynn Varella was
employed at the Medical Center.
3. The Medical Center, as printed in its employee handbook, maintained a personnel policy in regard to payment of
employees who were "on-call" or "called back" outside their normal work hours. The policy regarding "on-call" pay was as
follows:
An employee required to be "on-call" to come into work as needed will be paid $1.50 per hour while "on call." The
employee must be able to report to work within 30 minutes of the call.
The "call-back" provisions set forth that "call-back" pay would be provided at 1.5 times the base rate of pay to a maximum
of 4 hours in a maximum 16 hour period. Also, the policy provided that:
A two-hour call-back minimum will be paid to employees who are required to come in to work. The employee's regular rate
and applicable differentials will be paid for any call-back hours worked. In all cases, accumulated overtime will be paid in
accordance with state and federal wage regulations.
4. On September 14, 1999, Hurricane Floyd, a major hurricane, was threatening the South Carolina coast. Pursuant to that
threat, the Governor issued a mandatory evacuation order for part of the South Carolina coast on that day resulting in
massive traffic problems as people tried to evacuate. Lynn Varella's residence was in the mandatory evacuation zone.
5. On September 14, 1999, Varella's supervisor informed her and other staff members that they were "on-call" and should
be able to get to the hospital within 30 minutes of receiving a call. On the morning of September 15, 1999, the Hospital staff
was told by the Medical Center to come to the hospital. Varella reported to the hospital at 8:00 A.M.
The Hospital staff was informed that given the potential ferocity of the hurricane and the existing traffic jams, the Medical
Center believed that the only way the employees could comply with the thirty minute reporting requirement was that the
employees stay in an unused wing of the hospital. However, employees who could have assured the hospital that they could
comply with the thirty minute reporting requirement would have been free to leave. Following that staff meeting, Varella and
other members of the staff went to the unused wing of the hospital.
There was no medical activity in the unused wing, and the employees were allowed to wear casual clothes and watch
television. While in this area, Varella watched television, played cards, and ate. Moreover, during this period, some
employees left the premises for their own purposes. No action was taken against employees who left.
6. After the mandatory evacuation order was lifted on September 16, 1999. Varella and other employees not scheduled to
work left the hospital at 8:00 A.M. Varella received One and 50/hundredths ($1.50) Dollars per hour pay for the period she
was at the hospital on September 15 and September 16. The Medical Center also gave Varella 10 hours "Paid Time Off,"
which she used before leaving her position at the hospital.
7. Varella filed a complaint alleging the nonpayment of wages with the South Carolina Department of Labor, Licensing and
Regulation - Division of Labor. After an investigation, the Department issued a citation on December 16, 1999 for a penalty
and fine of Seventy-five ($75.00) Dollars against Summerville Medical Center.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. Pursuant to S.C. Code Ann. §§ 1-23-310, et seq., (Supp. 1999) and S.C. Code Ann. § 41-10-80 (Supp. 1999), the
Administrative Law Judge Division has jurisdiction to hear this contested case.
2. In weighing the evidence and deciding a contested case on the merits, the Administrative Law Judge must make findings
of fact and conclusions of law by a preponderance of the evidence. Anonymous (M-156-90) v. State Bd. Of Medical
Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).
3. Chapter 10 of Title 41 of the South Carolina Code, entitled "Payment of Wages," applies to all employers in South
Carolina except that § 41-10-30 does not apply to employers of domestic labor in private homes or employers employing
fewer than five employees at all times during the preceding twelve months. S.C. Code Ann. § 41-10-20 (Supp. 1999).
Therefore, Chapter 10 of Title 41 is applicable to Summerville Medical Center.
4. Wages are afforded a special "protected" status under the law. The South Carolina Payment of Wages Act is "remedial
legislation designed to protect working people and assist them in collecting compensation wrongfully withheld." Dumas v.
Infosafe Corp., 320 S.C. 188, 194, 463 S.E.2d 641, 645 (Ct. App. 1995).
5. S.C. Code Ann. § 41-10-30 (Supp. 1999) sets forth, in relevant part, that "[e]very employer shall notify each employee in
writing at the time of hiring of the normal hours and wages agreed upon, the time and place of payment, and the deductions
which will be made from the wages, including payments to insurance programs."
6. The Department contends that the Medical Center improperly withheld money from the wages of Lynn Varella by paying
her the "on-call" rate instead of the "call-back" rate, and thus, violated S.C. Code Ann. § 41-10-40(D) (Supp. 1999).
Section 41-10-40(D) provides that "[e]very employer in the State shall pay all wages due at the time and place designated as
required by subsection (A) of § 41-10-30."
7. The personnel policy of Summerville Medical Center defines "on-call" as able to report to the hospital within 30 minutes
of being called. "Call-back" status is apparently when one is "called back" to work outside their normal work hours.
8. The Respondent argues that the Medical Center was only required to compensate Varella with "on-call" pay because she
did no work during that time period. Further, Respondent argues it was justified in calling employees into the hospital, and
still considering them "on-call," because the employees simply could not have reliably gotten to the hospital in less than
thirty minutes. The Department argues that since Varella was called and told to report to the hospital, she is entitled to
"call-back" pay, even though she did not work.
9. There is no applicable definition of "on-call" or "call-back" in the South Carolina statutes or regulations. However, there
is pertinent federal law on the subject. Since S.C. Code Ann. § 41-3-80 (Supp. 1999) gives the Department power to assist
and cooperate with the wage and hour division of the United States Department of Labor in enforcing the Fair Labor
Standards Act, the federal regulations and law are persuasive.
The decision of whether an employee is "on-call" often involves the phrase "waiting to be engaged" or "engaged to wait."
See Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). A decision in such an instance is made by
"scrutiny and construction of the agreements between the particular parties, appraisal of their practical construction of the
working agreement by conduct, consideration of the nature of the service, and its relation to waiting time, and all the
surrounding circumstances." Id. The court must consider "whether the restrictions on the employees' on-call time are so
burdensome as to render it time predominantly spent for the benefit of the employer." Gilligan v. City of Emporia, 986 F.2d
410 (10th Cir. 1993). Additionally, a federal regulation sets forth that: "An employee who is required to remain on call on
the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while 'on
call'. An employee who is not required to remain on the employer's premises but is merely required to leave word at his
home or with company officials where he may be reached is not working while on call." 29 C.F.R. § 785.17.
10. In this case, Varella was called and told to report to the hospital to be "on call." Once there, she used the time watching
television, playing cards, and eating. Varella did not perform any work for the hospital. Furthermore, staff members were
allowed to come and go. Consequently, some staff members left during the period in question. Moreover, the Medical
Center's request that Varella stay in the unused wing of the hospital was also an accommodation to Varella to insure that
under the exceptional circumstances of this case she could comply with the "on-call" policy. In fact, Varella's supervisor
informed the staff that if they refused to stay at the Medical Center no action would be taken against them. The Department
presented no evidence to the contrary. Accordingly, under these facts, Varella was not compelled to remain at the hospital.
Factors such as traffic, weather, and the fact that her home was in the evacuation zone may have persuaded her to remain,
but the preponderance of the evidence indicates that the hospital did not force her to stay. While each of the above facts are
not dispositive alone under the federal analysis cited above, I find that the evidence taken as a whole establishes that Varella
was merely "on-call." Accordingly, Summerville Medical Center acted properly in paying Varella "on call" wages instead
of the "call-back" rate. Therefore, Varella received the wages she was due, and there was no violation of S.C. Code Ann. §
41-10-40(D) (Supp. 1999).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the citation and penalty imposed by the Department against Summerville Medical Center
for violation of S.C. Code Ann. § 41-10-40(D) (Supp. 1999) be dismissed.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
July 24, 2000
Columbia, South Carolina |