Sometimes characterizing on-call time can be a little tricky. The general rule under the FLSA is that employees who are working on-call time are either “engaged to wait” or “waiting to be engaged.” As those descriptions suggest, an employer likely is required to pay an employee who is “engaged to wait” and does not have to pay an employee who is “waiting to be engaged.” But how do you tell the difference?
The distinction between these is primarily based on the degree of freedom to pursue personal endeavors the employee in question enjoys. So, for instance, FLSA Regulation 29 CFR 785.17 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.” On the other hand, an employee who is free to come and go as they please but, be available by phone and to come in if need be within a certain reasonable period of time, are likely “waiting to be engaged.” Like so many rules, there is no bright line test.
Of course, it is important to not only determine whether on-call time is work or not for pay purposes, but also for overtime purposes. If on-call time is determined to actually be work time, it then is added to other work time for the week. Any time over 40 hours in the work week must be paid at time and one half.
Recently, the southern district court in Ohio had an opportunity to examine this issue again. The plaintiff was a hospice nurse who had to be available for 48 hour shifts. During those shifts, the plaintiff generally actively worked about 25 hours. Her employer claimed that she was free to use the remaining time as personal time, but the employer’s records revealed that not only was the plaintiff paid her straight hourly rate for all of the shift hours, but more importantly, the plaintiff was expected to immediately respond to all calls during that time. That meant that in addition to working more than half of the shift hours, if called she was required to immediately provide services to the patient in need. Because of the expectation that the plaintiff be available at any moment’s notice to provide assistance to a patient, along with the significant number of hours that she worked during the shift, the court defined her as being “engaged to wait,” and entitled to overtime for the hours worked (including on-call) over 40 in the work week.
Employers should be aware that employees who are required to respond immediately when called while “on-call” might actually be “engaged to wait” and those hours are not only compensable but count towards hours worked for overtime purposes. Employers are wise to examine their on-call requirements to ensure that they are defined correctly.
On-call, along with other wage and hour issues can be deceptively complicated. The labor and employment attorneys at Ancel Glink are available for consultation on these issues as well as other employment related matters. Contact Margaret Kostopulos (email: firstname.lastname@example.org or tel: 1-312-604-9106) to discuss your labor and employment needs.