By Jonathan K. Driggs, Attorney at Law
So, when is employee on-call time compensable? The question is easy to answer: it depends! (boy, I just never get tired of using that tried and tested attorney response, huh?) But seriously folks, I’m really not trying to be difficult, the answer to when on-call time is compensable truly does depend upon various factors.
The U.S. Department of Labor (DOL) states the rule as follows:
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 (29 CFR §785.17).
In a US Supreme Court case from way back in 1944 (Skidmore v. Swift & Co., 323 U.S. 134), the court stated that a case-by-case, fact specific analysis must be done in each situation to determine if on-call time is compensable (see, I wasn’t making it up when I said “it depends!”) While no single factor is determinative, the factors to be considered include:
- The terms of any employment agreement (if there is one—but I would be careful of over-applying this factor in favor of the employer);
- Any physical restrictions placed on an employee;
- The response time—the period of time the employer allows for the employee to respond if called—if employees have 30 minutes to report to work once called, that is the response time (and shorter response times work in favor, generally, of compensability);
- The percentage of calls expected to be returned by the employee on-call;
- The frequency of actual calls during the on-call period;
- Whether (and to what extent) the employee is able to use (or not use) on-call time for his/her own purposes, and
- The possibility of disciplinary action (and severity thereof) for employees who do not respond when on-call.
Ultimately, the biggest determining factors in most cases relate to #2, #5 and #6 above: how much freedom does the employee have to use the on-call time for his or her own purposes? Is the employee getting a lot of calls such that the employee really doesn’t have much opportunity to engage in his or her own activities? How restricted is the employee in his or her geographical movements? Can the employee pretty much go wherever he or she wants (within reason), or is the employee heavily restricted as to where he or she can go? Minor restrictions do not usually trigger compensability, while the more locked down an employee is, the greater the chance the time is compensable.
In my experience, the more the employee can use the on-call time for his/her own purposes (within reason), and the less frequent work-related interruptions occur, the greater the likelihood that the on-call time is not compensable (but remember, any time that the employee spends responding to phone calls or otherwise actually working must be paid). However, with the DOL becoming stricter these days in their interpretation of wage and hour laws and regulations in favor of employees, it is a good idea to periodically audit your on-call arrangements.
This article should not be construed as legal advice. Copyright ©2014 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
Jonathan’s popular “Employment Law for Managers Seminar” is being offered by two “Custom Fit Programs” at significantly discounted rates for “for-profit” employers (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers):
For employers in Utah County: Thursday, January 29, 2015, at the Mountainland Applied Technology College’s Thanksgiving Point campus. For details and registration contact: Roger Rice at 801-753-4153.
For employers in Salt Lake County: Wednesday, March 11, 2015, at the SLCC Miller Campus in Sandy. For details and registration contact: Debbie Patten at 801-957-5244.
For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see: http://www.jkdlawpc.com/seminars/employment-law-for-managers-seminar/