It depends on how restricted your activities are while you are on-call. The more restricted, the more likely you are entitled to pay for on-call hours worked. The on-call time may also have to be included in the payment of overtime.
What is On-Call Time?
“On-call” or “standby” time refers to periods when an employer requires an employee to be available to work if needed, usually before or after scheduled working times. While on-call, workers are often required to carry a company phone, remain within a certain distance from the worksite, or be reachable and able to respond to being called into work within a short response time. Requiring employees to be on-call, without pay, is common in many industries, including healthcare, IT support, oilfield, chemical, industrial, construction, and fieldwork. Under some circumstances, on-call time should be compensable.
Compensability of On-Call Time Under the Fair Labor Standards Act (FLSA)
The FLSA governs wage laws in the United States, including whether on-call time should be considered work time. Additionally, laws in some states also address payment for on-call time. Generally, the FLSA requires that on-call time be considered compensable work time if the restrictions imposed on employees significantly restrict the workers’ ability to use the time effectively for personal activities. However, on-call time is not automatically considered work hours under the FLSA. Generally, the test for compensability is whether the employee is “engaged to wait” or “waiting to be engaged.” Hours are compensable if you are “engaged to wait.” Several factors impact this determination.
Factors Determining Compensability
Whether an employee is “engaged to wait” and must be paid for on-call hours is a question of fact that is decided on a case-by-case basis. Some of the factors that go into the determination are:
- Does the employer require the employee to remain on the job site?
- If the employee can leave the job site, what geographic restrictions are imposed?
- To what extent can the employee use on-call time for his or her own purposes?
- Is the employee completely relieved of all job duties while on-call?
- How quickly must the employee report for duty after being called to work?
- Is the employee required to remain in uniform while on-call?
- Is the employee required to respond to calls, texts, or emails while on-call?
- Is the nature of the job one where on-call callouts are anticipated and/or frequent?
- Is consumption of alcohol while on-call prohibited?
Do I Have a Claim for Unpaid On-Call Time?
To determine if you are owed wages for on-call time, the above, and other factors must be applied to your situation. 29 C.F.R. §785.16(a), the FLSA “off duty” regulation, states:
“Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purpose are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all the facts and circumstances of the case.”
As this regulation requires, the unique facts of the on-call policy at issue must be examined. The more the employer restricts the worker’s freedom, the more likely on-call time will be compensable. For example, a healthcare worker who is free to leave the hospital, has no restrictions on personal use of on-call time, and is required to report to work within an hour of being called is probably not eligible for on-call pay. On the other hand, if the employer required the healthcare worker to remain at the hospital while off-duty and to report for work within ten minutes of being called, the worker would likely be entitled to on-call pay.
On-Call Time Violations
Under the FLSA, an employer is required to pay an employee for all time worked. Further, employers must pay time and a half (1½) to all overtime-eligible employees for all hours worked over 40 in a workweek. Employees who were not paid on-call time in violation of the FLSA would be eligible to receive unpaid straight time, overtime, and liquidated, or double damages if the violation was a knowing violation of the FLSA. The unpaid on-call claim can extend back up to three years. Additionally, the employer may be liable to pay the worker’s attorney fees and costs.
If you were not paid for on-call time and would like more information on this, or other wage and hour topics, contact the lawyers at Bohrer Brady, LLC for a free, confidential consultation.
