Questions about employers' duties to pay for "on call" time have been constant ever since the wage and hour laws were first enacted sixty years ago. After hundreds of court decisions over those years, the law has finally come to a fairly settled point of development, and claims concerning on call time now are fewer and more quickly resolved than they were in the past. The good news for employers is that in recent years most claims by employees for compensation for on call time have failed, because on call time for most employees simply is not compensable under the wage and hour laws.

     The wage and hour laws require an employer to pay a non-exempt employee for the employee's "hours worked." Is an employee's on call time working time for which the employee must be paid? The answer depends on the nature and extent of the employee's duties and restrictions during that time.

     The Regulations

     The United States Department of Labor long ago issued regulations to define how on call time should be treated. The general wage and hour regulation concerning on call time provides simply: "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 CFR §785.17.

     A special regulation applicable to public employees similarly but somewhat more elaborately provides: "An employee who is not required to remain on the employer's premises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, a firefighter has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee's activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable." 29 CFR §553.221(d).

     Restrictions vs. Effective Use

      By definition, all on call time is at least somewhat restricted. The key test is whether the employee can "use the time effectively for personal pursuits." In litigated cases, employee claimants tend to submit long lists of everything they can't do while on call, and employers counter with long lists of everything the employees can do while on call. In general, employers win these arguments. If employees can during their on call time do most home and neighborhood activities (eat, sleep, watch TV, read, spend time with family, work around the house, do local shopping, attend some local events, etc.), then the employees can use that time "effectively" for their personal pursuits, even if they can't do everything they would do if they weren't on call.

     Geographic/Response Time Restrictions

      Sometimes an on call employee is subject to such severe geographic or response time restrictions that the employee cannot make effective use of on call time for personal pursuits. The regulations say that if an employee is required to be "on or close to" the employer's premises while on call, then the on call time is working time. In recent years, most litigated cases have focused on time response restrictions. If an employee is required to be able to respond in person to an employer's premises within a very short period of time, then that short response time requirement may be a severe restriction on, or as a practical matter preclude, the employee's use of on call time for personal pursuits. If the response time requirement is "reasonable," then it would not unduly restrict the employee. In small towns and areas in which travel is fairly easy, courts have ruled that response time requirements of as little as 7 minutes and 5 - 10 minutes are not unduly restrictive. In a big city or other areas where travel may be difficult, a response time requirement of less than 20 minutes would be very severe. Most employers require on call employees to respond "within a reasonable time" or "as soon as you can get there" or "within 20 minutes," and these types of requirements are typically seen as reasonable and not unduly restrictive. Of course, if an on call employee's duty is just to phone in or log on within a certain time rather than to travel to and arrive at a specific location within a certain time, then the response requirement is even less restrictive.

     Frequency Of Calls

     If an on call employee is frequently called in to work, then the employee's on call time is frequently disrupted and cannot be used "effectively" for personal pursuits. In one case a court ruled that firefighters who were called in for emergency firefighting and other work an average of 3 - 5 times per 24-hour on call shift were called in so often and worked so much that their on call time was working time. Most on call employees, however, are called in much less frequently than 3 - 5 times per on call shift. Courts have routinely ruled that the on call time of employees who average being called in once per shift or less is not working time. Also, as suggested above, if an on call employee's duty is just to phone in, log on, or do telephone work rather than to travel to a specific location and perform more burdensome work, then a higher frequency of calls is not unduly restrictive.

     Modern Telecommunications Devices

      When the Department of Labor's regulations were written long ago, beepers, pagers, cellular phones, and other modern telecommunication devices did not exist. At most, ordinary telephones were used to call in and call out. To the extent that an employer and employee use a more flexible or effective form of communications now, the employee will more easily be able to use on call time effectively for personal pursuits. Courts have ruled that if an employee chooses not to use an available pager, beeper, or other similar device, the employee may not complain about being required to stay at home by a telephone.

     No Alcohol Requirements

     The courts have repeatedly ruled that a requirement that an employee refrain from any alcohol consumption while on call is not a severe restriction which makes the on call time working time.

     Uniform/Clothing Requirements

     If an employer requires an on call employee to wear a uniform or a particular type of clothing when called in to work, this requirement may or may not be a severe restriction which makes the on call time working time. If the uniform or clothing required is not so unique, ornate, or restrictive that it would interfere with personal matters or cause an employee embarrassment if worn outside the work place, then the on call time is not working time. If an employee is required to wear a "restrictive" uniform when called into work, the employee's on call time nevertheless will not be working time if the employee puts the uniform on only after arriving at the employer's premises, or if the required response time is sufficiently generous that the uniform only needs to be put on just before traveling into work (i.e., the employee does not have to wear the uniform while on call).

     Trading Or Swapping On Call Assignments

     Several courts have ruled that if an employee may easily trade or swap on call assignments with other employees, then the employee's on call assignments are not unduly restrictive. However, trading or swapping of on call assignments is not required for on call time to be non-working time. The key test is whether the employee while on call may "use the time effectively for personal pursuits," not whether the employee may reschedule or avoid his on call assignments. One case involved the on call time of an employee who was on call every day after his regular shift and who had no opportunity for swapping assignments (because the employee was the only one assigned to his type of on call duty within the organization); the court ruled that the daily on call time was not working time because the employee still could use the time effectively for personal pursuits.

     Agreements

     Several courts have ruled that an employee's agreement that on call time will not be paid time will be enforced unless the employee clearly proves that the on call time really was so severely restricted that it must be counted as work time in spite of the agreement. Employers should take advantage of this law and use express, clear agreements about the terms and conditions of required on call time.

     Several courts have also ruled that an employer's payment of on call time does not by itself make that time "hours worked" for wage and hour purposes. For example, in one case an employer paid $2.25 per hour for on call time plus a minimum of three hours pay per call in at time and one-half rates. The employees claimed on call time was working time which should be paid for at regular hourly rates (and at overtime rates for hours over forty per week). The court ruled that the on call time was not working time because the employees could use it effectively for their own personal pursuits. The fact that on call time was paid for by the employer did not make it working time.

     Actual Hours Worked

     If an on call employee is called into work, then all time the employee spends responding to that call, including the time spent travelling to the work location and back to the employee's home, must be counted as "hours worked." Such home-to-work travel is compensable as special travel at the request of the employer; it is not ordinary non-compensable regular commuting time. If an on call employee responds to a call by working at home (such as by handling a problem by phone or through a home computer), that time spent working at home also must be counted as hours worked.

     Exempt Employees

     An employer may assign on call duties to an exempt employee. If, in fact, the employee is properly classified as an exempt employee, then the assignment of on call duties does not destroy the employee's exempt status (unless the on call duties are of a non-exempt nature and amount to the employee's primary duty). An employer is not required to pay an exempt employee for on call time. If an employer voluntarily chooses to pay an exempt employee for on call time, the payment should not be made on a "per hour" basis or referred to as "overtime pay". Instead, the payment should be a flat rate per week or per shift, or a percentage increment or bonus, or some other non-hourly form of compensation. Payments on a "per hour" basis may be inconsistent with an exempt employee's salaried status.

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: February, 2000
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