Under the Fair Labor Standards Act (“FLSA”), employees must be compensated for actual work performed, whether on or off the job site. But with the many technology advancements in the workplace, employers can now effectively run their businesses around the clock by keeping employees “on-call” after regular business hours, requiring them to work only if needed. Hospital employees, for instance, have to remain in the hospital premises when on-call. Other employees may be able to leave work when on-call, but are still subject to restrictions. For example, on-call firefighters are often not required to remain at the station, but they may have only a 30 minute time frame to respond to a call. Under the FLSA, on-call employees may be eligible for compensation—but only under certain circumstances. Thus, employers have struggled with determining when to pay employees for working on-call. Here are the relevant principles to keep in mind:
Under the general test set forth in Skidmore v. Swift & Co., 323 U.S. 134 (1944), an employee that is “engaged to wait” is entitled to compensation, but an employee “waiting to be engaged” is not. The regulations interpreting the FLSA provide some insight, requiring compensation for on-call time when (1) employees are required to stay on the premises, or (2) when employees must remain so close that they cannot use their time away from the premises for their own purposes.
It’s easy to see how this is a confusing area of wage and hour law. Realistically, it is difficult to apply a simple 2-part test to the countless job positions in today’s workforce. These cases are very fact-specific and are typically decided on a case-by-case basis. Courts have relied on various factors in determining whether on-call time is considered work time. These factors include: whether the employee had actually engaged in personal activities during the on-call time; the flexibility of trading on-call responsibilities with another employee; agreements between the parties that provide some amount of compensation for waiting time; the frequency of calls; and whether the fixed time limit for response was unduly restrictive.Source: Joseph U. Leonoro, On-Call Time – When Is It Compensable? (July 13, 2012), http://www.sjlaboremploymentblog.com/when-is-on-call-time-compensable/. [social_share style=”square” align=”horizontal” heading_align=”inline” facebook=”1″ twitter=”0″ google_plus=”1″ linkedin=”1″ pinterest=”0″ /]