['Compensation', 'Wage and Hour']
['Compensation', 'Waiting Time as Working Time', 'Hours Worked']
10/04/2024
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
The answer depends on whether the employee is “working” while on call. If the limitations on the employee are restrictive, the employee could be working and the time must be paid (and must be credited toward overtime). The federal regulation at 29 CFR 785.17, On-call time, states:
“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.”
The Wage and Hour Division has published a number of opinion letters on the topic, including FLSA2008-8NA, On-call time and hours worked, which says:
“The federal courts evaluate a variety of factors when determining whether an employee can use on-call time effectively for personal purposes, such as whether there are excessive geographical restrictions on an employee’s movements, whether the frequency of calls is unduly restrictive, whether a fixed time limit for response is unduly restrictive, whether the employee could easily trade on-call responsibilities, whether use of a pager could ease restrictions, and whether the on-call policy was based on an agreement between the parties.”
Obviously, each case is unique. For example, if an employee gets one or two calls per “shift” and is expected to respond within a few minutes, the frequency of the interruptions and the short response time may require you to consider all of the on-call hours as “working” time that must be paid. On the other hand, if the employees only get one call per week, and have a reasonable amount of time to respond, they probably don’t have to be paid for all “on call” hours because they aren’t working.
Reasonable restrictions which do not normally impose an obligation to pay for the time might include asking the employee to refrain from excessive alcohol consumption, to remain within a reasonable response time (i.e., don’t travel so far that you cannot respond within the expected time), and to carry a cell phone or pager. Otherwise, the factors above must be evaluated on a case-by-case basis. For instance, a longer response time (say, one hour) would place fewer geographical restrictions on travel, but could be over-shadowed by very frequent calls (several each evening) which prevent the employee from effectively engaging in personal pursuits.
Some employers choose to provide “on call pay” even if the employees are not under substantial restrictions and are not legally “working” but this compensation is not required (it could even be a flat amount that works out to less than minimum wage for the period covered). Of course, once an employee gets a call and responds, he is “on the clock” and the time must be compensated.
READ MORESHOW LESS
['Compensation', 'Wage and Hour']
['Compensation', 'Waiting Time as Working Time', 'Hours Worked']
Load More
J. J. Keller is the trusted source for DOT / Transportation, OSHA / Workplace Safety, Human Resources, Construction Safety and Hazmat / Hazardous Materials regulation compliance products and services. J. J. Keller helps you increase safety awareness, reduce risk, follow best practices, improve safety training, and stay current with changing regulations.
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.