On Call Time Under the FLSA
The Law Offices of Kevin J. Dolley represents employees nationwide under the Fair Labor Standards Act (FLSA) making claims for unpaid wages as a result of uncompensated on call time.
The Department of Labor has published an opinion letter regarding whether on-call time constitutes compensable work time under the Fair Labor Standards Act (FLSA). The opinion letter responded to an on-call situation where employees' on call time required them to be reachable by phone, not consume alcohol and report to duty within one hour of notification while on call.
Department of Labor On-Call Opinion
The dividing line between compensable and non-compensable on-call time is based upon whether or not the on-call requirements are so restrictive or the calls so frequent that the employee cannot effectively use that time for personal purposes. See 29 C.F.R. § 553.221(d).
The DOL notes that the determination of whether on-call time is compensable is a highly fact-sensitive analysis. 29 C.F.R. § 785.17 specifically states that an employee is not on the employer's work location but on-call is not engaged in compensable work time. The statute states that the employee must be able to engage in personal activities while on call in order for it to not be compensable time.
The DOL contrasted two cases - one in which the time was not compensable and the other case whether the time was compensable work time. In the first case, on-call time was not compensable time when the technician was "reachable by beeper, remain sober, and arrive at the hospital within approximately 20 minutes after being called. The technician received calls while on call an average of 4-5 times per week." In the compensable work time case, "firefighters  were required to wear pagers and respond to callbacks within 20 minutes, and received an average of three to five calls, and as many as 13 calls, in a 24-hour on-call period."
FLSA On-Call Federal Court Opinions
Federal courts that have examined the restrictions in particular on-call situations look at geographical restrictions on employees, the amount of calls received for service, permitted response time, ability to trade calls with other employees, communication technology provided to the employee and the agreement of the parties regarding on-call time. See Reimer v. Champion Healthcare Corp., 258 F.3d 720 (8th Cir. 2001); Pabst v. Okla. Gas & Elec. Co., 228 F.3d 1128 (10th Cir. 2000); Ingram v. County of Bucks, 144 F.3d 265, 268 (3d Cir. 1998); Owens v. Local No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 351 (9th Cir. 1992); Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991); Cross v. Ark. Forestry Comm'n, 938 F.2d 912, 916 (8th Cir. 1991); Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671 (5th Cir. 1991).
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