Compensating 'On-Call' Workers
Question: Due to the nature of our business, we would like to require our employees to be "on call" during certain days. Of course, if we call them in to work on those days we will pay them for the time worked. However, does federal law require us to compensate our employees on the days that they are "on call" but not asked to report to work?
Answer: Federal law may require an employer to compensate an employee for hours when the employee is "on call," even if an employee is not actually asked to "report to work." The Fair Labor Standards Act is the federal law that governs whether a non-exempt employee must be paid while "on call." As interpreted by the federal courts, a non-exempt employee's right to compensation for on-call time under the FLSA depends on whether the employee is "engaged to wait" or is "waiting to be engaged." See Dinges v. Sacred Heart St. Mary's Hosps., Inc., 164 F.3d 1056, 1057 (7th Cir. 1999) (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944) and Armour & Co. v. Wantock, 323 U.S. 126 (1944)). The former qualifies as compensable work; the latter does not. Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 350 (9th Cir. 1992) (citing Skidmore, 323 U.S. at 137).
Classifying an employee's on-call time requires an individualized and fact-specific analysis. The critical question is whether an employee can use on-call time "effectively for his or her own purposes." See 29 C.F.R. §§ 785.16–785.17. If being "on call" requires an employee to remain on the employer's premises or "so close that he cannot use the time effectively for his own purposes," the employee is "engaged to wait" and the on-call time qualifies as compensable work. 29 C.F.R. § 785.17. For example, if a restaurant requires part-time employees to remain at or near the restaurant's premises until a sufficient amount of business justifies putting another employee "on the clock," and the employer does not "hold" work for any specific on-call employee or tell on-call employees they can leave the premises for a specific period of time, on-call employees must be paid while "engaged to wait." Brock v. DeWitt, 633 F. Supp. 892, 895 (W.D. Mo. 1986); see also 29 C.F.R. 785.15 (identifying examples of time spent "engaged to wait").
Generally speaking, an employee who is free to leave the employer's premises while "on call" and who need only leave word at his home or with company officials about where he may be reached is considered "waiting to be engaged" and not performing compensable work. 29 C.F.R. § 785.17.
However, on-call conditions must still permit the employee to "effectively use [on-call] time for personal purposes." U.S. Dep't of Labor, Wage & Hour Op. Letter FLSA2008-14NA, Dec. 18, 2008 (citing 29 C.F.R. § 553.221(d)); accord Moon v. Kwon, 248 F. Supp. 2d 201, 229 (S.D.N.Y. 2002) (an employee is "engaged to wait" when periods of inactivity are "unpredictable . . . [and] usually of short duration").
Relevant factors include: geographical restrictions on employees' movements; the frequency of an employer's calls; the existence, and length of a fixed time limit for response to an employer's call for work; an on-call employee's ability to "trade" on-call responsibilities with other employees; the existence of any agreement between the parties governing on-call time; and whether the employee actually engages in personal activities during on-call time. See Berry v. Cnty. of Sonoma, 30 F.3d 1174, 1183 (9th Cir. 1994). For instance, a repair technician that must be reachable by beeper and able to arrive at an employer's premises within 20 minutes of a call does not have to be compensated for inactive on-call time if the employer only calls four to five times per week. See Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 677-78 (5th Cir. 1991); accord Dinges, 164 F.3d at 1058 (although on-call time for EMTs had seven minutes to report if paged, time was not compensable since likelihood of a call in a 14-16 hour period was less than 50 percent). If the repair technician were to receive four-to-five calls per day, however, his on-call time would likely be compensable. See Renfro v. City of Emporia, 948 F.2d 1529, 1535 (10th Cir. 1991) (involving a 20-minute response time for on-call firefighters).
In short, whether the FLSA requires an employee to be paid for period of inactivity while "on call" depends on the degree to which being "on call" burdens or interferes with an employee's personal pursuits. Pabst v. Okla. Gas & Elec. Co., 228 F.3d 1128, 1132 (10th Cir. 2000). No bright-line rule exists.
Keisha-Ann G. Gray is a partner in the labor and employment department of Proskauer Rose in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate Keith A. Goodwin assisted with this article.