On-Call Time

It used to be that only emergency personnel (i.e., police, fire and emergency healthcare) were concerned about on-call time. Now, with technology such as BlackBerries, cell phones, Smart Phones, lap top computers and the like, the practical effect of having employees on-call is becoming widespread and crossing most industries. So, what constitutes compensable on-call time?

Supreme Court Standard

The United States Supreme Court has adopted a two-pronged test for determining what qualifies as compensable work activity. Under this test, time is compensable work activity if it is: (i) controlled or required by the employer, and (ii) pursued primarily for the benefit of the employer. Thus, waiting time, at least in some circumstances, is compensable work time. As the Supreme Court put it, if the employee is "engaged to wait," the time must be compensated, but if the employee is merely "waiting to be engaged," compensation is not required.

A Question of Control

In simple terms the issue of compensable on-call time is resolved by a determination of who primarily controls the time in question, the employer or the employee. Thinking about it is these simple terms comports with general principles of wage and hour law. For instance, an employee may be free to leave the work site and yet still be on working time (such as when the employee is running an errand or making a delivery for the employer) and the employee may remain on the work site and yet be off the clock (such as when an employee takes a meal break). In the former instance, the employer still controls the time in question. In the latter instance, the employee controls the time. The same concepts apply to on-call time.

DOL Regulation

The Department of Labor has provided basic parameters within which to analyze on-call time. Under 29 C.F.R. Section 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'. An employee who is not required to remain on the employer's premises but merely required to leave work at his home or with company officials where he may be reached is not working on call."

Factors Considered

The DOL regulation provides some guidance but does not provide a bright-line test. There is no such test. Rather, on-call issues are resolved based on the particular facts in each case. A review of various cases and agency letter opinions reflects the following factors most frequently considered:

Frequency of Calls: While no particular factor is outcome determinative, courts and the DOL regularly look closely at the frequency of calls handled by an employee during the period of on-call time. The greater the frequency the more likely the time will be deemed controlled by the employer and there for compensable. It follows that infrequent calls during on-call time will tilt the balance toward non-compensable time.

Length of Duty: Is the on-call duty periodic and limited in length, long-term, or continuous? Generally, longer periods of on-call time impose more restriction on the employee, even in instances where there are fewer calls during the time in question.

Geographic Restrictions: An employee who is restricted to a very limited area, in many instance, does not control his or her own time. A tight geographic restriction suggests compensable time. Directly related to this, required response time of very short durations likewise restricts the employee substantially. A response time of less than thirty minutes is scrutinized closely. A response time of more than thirty minutes suggests the employee is substantially free in his or her own activities.

Pager/Cell Phone: An employee's use of a pager or cell phone during on-call time is a "two-edged sword." On the one hand, if the pager or cell phone is used frequently to contact the employee about work matters, the time is more likely deemed controlled by the employer and compensable. On the other hand, the use of a pager or cell phone gives the employee freedom to not be tied to a landline, which in turn allows the employee much more free use of his or her time. Employers should maintain records of such electronic activities for at least 2 years after the time in question.

Agreement/Policy: Is on-call time addressed in either an employment agreement or in company policies? It is always better to specify that on-call time is not compensable if the employer does not intend to compensate the employee for it instead of leaving the question solely for lawyers, courts, and government agencies.

Trading Call Time: The freedom to trade on-call time among responsible employees shows the employees retain another degree of control over the time. Significantly, however, whether an employee has volunteered for an on-call assignment does not appear to have had any impact in reported cases and opinion letters.

Limits on Activities: Lastly, the DOL and the courts will look at the overall extent to which employees' personal activities actually are limited. Reported decisions reflect considerations about whether the employee is free to leave their house or designated location, go to movies or shop, go to restaurants, exercise, sleep, do yard work, and entertain guests. Notably, in many cases, an employee's need to report to work for a call unimpaired leads to the argument that the employee is not free to consume alcohol. This limited restriction, however, has not changed the outcome of any decision found.

Posted by Thamer E. "Chip" Temple III