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FLSA Hours Worked Part 3

When to Count “On-Call” as Hours Worked

ON-CALL TIME

Some employers require their employees to work on an on-call basis often as a response to the business needs of specific industries. According to the FLSA regulations at 29 C.F.R. §785.17, "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.'"

If an employee who is on call can use his or her time freely and is not performing a specific assigned task, that employee is “waiting to be engaged,” as opposed to “engaged to wait” which is compensable time. The employee can be available by telephone if needed; however, since he or she is waiting (off duty), the employee is not compensated for that time.

There are many different employment positions and/or professions, such as nursing positions to repair type positions, etc., that may require an employee to remain available or on-call after their shift ends. The question most often asked is whether on-call time is hours worked for purposes of minimum wage and overtime. To answer this question, we will review on-call conditions and the Fair Labor Standards Act (FLSA) that governs the rules of on-call time.

An employee who is required to remain on his or her employer’s premises or so close thereto that he or she cannot use the time effectively for his or her own purposes is working while on-call. When an employee is on-call they are waiting to be called upon by their employer or supervisor to perform a task, this is typically called waiting to be engaged. Depending on the company or employer’s on-call policy, the on-call conditions may vary.

Some on-call conditions may require the employee to have a cell phone or other means of communication at all times. Other on-call conditions may prohibit the employee from drinking alcohol, or there may be a required response time when called upon. Some conditions may require the employee to remain on the employer’s premises. Depending on the circumstances some conditions can be non-restricted or restricted; which is generally examined to determine if the on-call time is hours worked.

Whether hours spent on-call is hours worked is a question of fact to be decided on a case-by-case basis.  On-call situations vary. Some employees are required to remain on the employer's premises or at a location controlled by the employer. One example is a hospital employee who must stay at the hospital in an on-call room. While on-call, the employee is able to sleep, eat, watch television, read a book, etc. but is not allowed to leave the hospital. Other employees are able to leave their employer's premises but are required to stay within so many minutes or so many miles of the facility and be accessible by telephone or by pager. An example of this type of employee is an apartment maintenance worker who has to carry a pager while on call and must remain within a specified number of miles of the apartment complex.

An example of off-duty status is found at 29 C.F.R. §785.16 in the FLSA regulations: "If the truck driver is sent from Washington, D.C., to New York City, leaving at 6:00 a.m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p.m. when he again goes on duty for the return trip the idle time is not working time. He is waiting to be engaged."

On the other hand, when an on-call employee is required to stay at the workplace or is so near the workplace that he or she cannot use his or her time freely, the employee is engaged to wait (on duty). In such cases, the employee must be compensated for this time.

The FLSA also offers examples of waiting or on-duty behaviors at 29 C.F.R. §785.15: "A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, a firefighter who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity."

NON-RESTRICTED CONDITIONS

Non-restricted conditions enable the employee to use time effectively for their own personal use while on-call. For example, a nurse may be required to carry a cell phone and return to the employer’s premises within thirty minutes after being called, but the nurse is free to sleep, visit with friends, or go shopping. This is considered non-restricted conditions. In most cases, non-restricted conditions is time an employee can use effectively for their own purposes and therefore is not considered hours worked. 29 C.F.R. § 785.17

RESTRICTED CONDITIONS

Restricted conditions, on-the-other hand, restricts the employee from effectively using the time for personal use. For example, if the on-call nurse was burdened with calls from the employer such that the calls prevent free use of time, or the conditions impede the nurse from using the time effectively for personal use, then the on-call time could be considered hours worked. 29 C.F.R. § 785.17

TIPS TO DETERMINE IF ON-CALL WORKERS MUST BE PAID

Here are six tips that employers should keep in mind when determining whether or not on-call workers must be paid for hours spent on-call.:

  1. STRICT GEOGRAPHIC LIMITATIONS. Generally, if the on-call requires people to stay in a close geographic proximity, then it’s compensable. There’s no one answer regarding how close employers can ask employees to stay to the work site. But requiring them to stay within a five-minute drive would almost always require they be paid for that time.
  2. RESTRICTIONS ON MOVEMENT. When an employee is required to stay in the same place – whether it’s a work site or at home – most rulings have come down in favor of paying the employee.
  3. QUICK-RESPONSE REQUIREMENTS. Then there’s the consideration of how much time a company gives an employee to respond to a call from work. Again, there’s no one hard-and-fast rule. But courts have generally decided that requiring employees to call back within 30 minutes is not overly restrictive. Anything less than that might be.
  4. UNIFORM REQUIREMENTS. If employees have to wear uniforms, that’s a sign that personal use of their on-call time is greatly restricted, and they should be paid for that time.
  5. FREQUENCY OF CALLS. The more calls employees get, the more likely it is they’re considered “on duty” and need to be paid. For example, the DOL has stated that EMTs who get more calls in the winter, when there are more weather-related accidents, may be owed wages for their on-call time during those months. But that is not always the case during times of the year when emergency calls are less frequent.
  6. PROHIBITING EMPLOYEES FROM SWITCHING SHIFTS. The more freedom employees have, the more likely it is they are not required to be paid.

The best way employers can determine if on-call time is compensable is to ask: If employees aren’t called, can they use the time as they see fit?

If the answer is yes, if employees are generally free to come and go on their on-call time, then they are not considered to be on duty and only need to be paid for the time actually spent working.

CONCLUSION

As you may have noticed there are many factors to consider when answering the question whether on-call time is “hours worked” for purposes of minimum wage and overtime. As a general rule, if the employee is waiting to be engaged with freedom to effectively use their time for personal uses without burden then this time is not considered hours worked. Nonetheless, circumstances and/or on-call conditions can be confusing, it is best to consult with a professional who specializes in the employment laws governing on-call time.

As with any nonexempt employee, federal law requires that on-call, nonexempt employees must still be compensated at or above the minimum wage and must be paid overtime for all hours worked in excess of 40 in any given workweek. Also, employers should make sure to check state laws on minimum wage and overtime.

For additional information about this blog, please contact your Poms & Associates broker, or send your question to us through “Ask Poms.”

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