On-Call Duty 2026: How to Properly Regulate Employees and B2B?

Employee On-Call vs. B2B Availability? Avoid Reclassification Traps

On-call duty is a state in which an employee or contractor remains ready to perform work or provide services outside the standard time specified in the employment contract or agreement. However, despite many similarities, they are regulated completely differently, which affects the associated obligations.

Employee on-call duty is regulated by the Labor Code (Art. 151⁵) and is therefore subject to the protection resulting from it.

In contrast, in B2B relations, there are no detailed regulations regarding on-call duty. This means that civil law provisions apply, and the rules for performing it are determined by a specific agreement between the parties.

And here a problem arises. How to distinguish between these types of on-call duty so as not to fall into numerous traps that could serve as an argument for contract reclassification?

Immediate Effects of Inspection: New PIP Powers and B2B Risk

In connection with the labor law changes planned for 2026, it is anticipated that the competence of the National Labor Inspectorate (PIP) will be expanded by granting inspectors the power to issue administrative decisions. These decisions may result in the immediate transformation of the legal relationship between the employer and the contractor if the B2B contract is deemed to have the characteristics of an employment relationship.

The inspector’s decision will be subject to immediate execution regarding the consequences resulting from labor law, tax regulations, social and health insurance, and mandatory fund contributions, from the moment it is delivered to the employer.

Therefore, it is crucial to understand the differences between the on-call models and how to regulate them correctly.

On-Call in the Labor Code: Learn the Limits and Compensation Rules

Employee on-call duty consists of the employee remaining ready to undertake work outside their normal working hours. The employer may oblige them to such availability both on the premises of the workplace and in another designated location, including at home.

Importantly, the on-call duty itself does not mean performing work, but only waiting for its possible commencement; therefore, as a rule, it is not included in the working time. Only the actual undertaking of duties ends the on-call duty and signifies the start of work.

Performing on-call duty is part of the broadly understood duties of an employee; therefore, as a rule, they cannot refuse to follow an instruction in this regard, provided it does not violate legal provisions or contract terms.

At the same time, the employer does not have full discretion in assigning them. Three basic restrictions apply:

• the on-call duty must fall outside standard working hours,
• it cannot violate minimum rest periods (at least 11 hours per day and 35 hours per week), which in practice limits its duration, e.g., with an 8-hour workday, to a maximum of 5 hours,
• it cannot be assigned to persons who are prohibited from performing overtime work (e.g., pregnant women).

The regulations do not impose a specific form for ordering on-call duty; it can be issued in writing, orally, or electronically, e.g., by e-mail. The employer, however, is obliged to keep records of on-call duties, including their time, place, and duration.

For on-call duty performed at the workplace, compensation is due in the form of time off corresponding to its duration.

If it is not possible to grant such time off, the employee is entitled to remuneration resulting from their rate (hourly or monthly), and if such a component has not been identified, 60% of the remuneration.

In the case of home on-call duty, compensation is generally not due (this also applies to remote work). An exception is the time actually worked during such duty, it is included in the working time, is subject to normal remuneration, and may constitute overtime work, for which appropriate bonuses or time off are due.

As can be seen, the regulations regarding employee on-call duty are quite rigid, and the employer must be prepared to comply with externally imposed forms and restrictions.

On-Call in B2B: Full Freedom of Parties, but Lack of Statutory Protection

On the other hand, a contractor operating in the B2B model performs services based on a civil law contract, which means they are not subject to and are not limited by the provisions of the Labor Code. Its exact scope depends solely on the arrangements of the parties and the contractual provisions.

Unlike an employee, a contractor is not entitled to statutory working time limits or guaranteed rest periods. Rules regarding on-call duty can therefore be shaped freely; the contract may provide for a lump sum for availability, an hourly rate for readiness, or no additional remuneration.

The institution of overtime also does not exist in the B2B model. Any work exceeding the established scope can be settled exclusively in accordance with the provisions of the contract, both regarding the scope of duties and remuneration. This means that the contractor does not benefit from statutory labor protection but has greater flexibility in shaping the rules of cooperation.

B2B On-Call Under the Microscope: 4 Mistakes That Can Lead to Contract Reclassification

On-call issues in a B2B contract must be regulated very carefully. Their improper structure may lead to the conclusion that the civil law contract is sham and in reality corresponds to an employment relationship, thus allowing for reclassification. Such a situation may occur when the on-call duty:

• is mandatory in nature,
• takes place during strictly defined hours,
• is performed under constant supervision,
• limits the contractor’s freedom (e.g., requires constant presence at the computer).

These types of elements may indicate subordination typical of an employment relationship, which in turn may result in its formal determination and the employer’s obligation to pay outstanding benefits.

Therefore, it is essential that the rules of on-call duty are business-justified and do not resemble an employment relationship.

Compliance and Safety: How to Correctly Regulate On-Call Duties in the Company?

From the perspective of compliance and limiting the risk of establishing an employment relationship, we recommend:

Clear separation of models. On-call duties under an employment contract should be designed in strict accordance with the Labor Code (in particular Art. 151–151⁵ k.p.), taking into account records, rest, and compensation rules.

Of course, compensation may be higher than that specified by the Labor Code, as an employment contract may provide for more favorable conditions.

Contractual regulation of B2B. In the B2B model, it is necessary to precisely describe:

• what “on-call duty” is (e.g., a specific level of availability),
• when and on what terms the contractor reacts,
• how the remuneration is shaped accordingly.

Minimizing the risk of reclassification. The construction of B2B on-call duty should avoid elements of subordination, in particular, rigid schedules, constant supervision, and limitations on organizational freedom.

Dualism of Models: How to Effectively Distinguish B2B On-Call from Employee On-Call?

If parallel functioning of on-call duties in the UoP (employment contract) and B2B models is planned, the differences should not be limited solely to the amount of remuneration. It is also recommended to clearly distinguish:

• the rules for performing the on-call duty (e.g., degree of availability, reaction time),
• the method of organization (schedule vs. flexible availability),
• the level of control and reporting.

A lack of such differentiation significantly increases the risk of the B2B model being challenged as sham.

In practice, clients who introduce on-call duties for both UoP and B2B choose, for example, to regulate UoP on-call duties in the same way as in the Labor Code, and for B2B, most often a fixed rate for each day of on-call duty + e.g., an hourly rate for each hour of effective service provision during the on-call duty.

Inclusion of regulatory changes. In the context of planned changes (strengthening PIP’s powers), a more conservative approach should be adopted, especially in the area of B2B relations.

We recommend first clarifying the rules for performing on-call duties and their remuneration in both the UoP and B2B models, and then conducting a comparative analysis to identify and eliminate potential similarities, so that the final conditions in both models are clearly differentiated.

Do you want to minimize the risk of contract reclassification in your company? We encourage you to contact our labor law specialists at: [email protected]. We will conduct an analysis of your standards and prepare secure documentation.“`