With the widespread availability of cell phones, blackberries, e-mail, fax machines and other modern day tools; we are tied closer to the workplace than ever before. We can be called into work at a moment’s notice and many companies required employees to be available for what they call “on call” time. So when should an employee be compensated for time they have spent “on call”? The answer will depend on each specific case, however the Department of Labor and the United States Supreme Court in interpreting the FLSA (Fair Labor Standards Act) have given us some guideposts to help in this determination.
The key question in determining whether or not an employee should be compensated for time spent “on call” is whether the employee is “waiting to engage” or “engaged to wait”. In other words, how much freedom does an employee have while “on call”. Under the Fair Labor Standards Act and the corresponding rulings by the Department of Labor and the United States Supreme Court, “An employee who’s required to stay so close to the workplace in time and distance that they have very little freedom to use the time as her own has been “engaged to wait,” and the on-call time constitutes “hours worked” for purposes of the FLSA.”
Some other questions that should be considered when determining if an employee should be compensated include:
• What’s the geographic or response-time limitation placed on an on-call employee? A narrow geographic or time restriction, such as staying within two miles of the home or workplace or being required to respond within 10 minutes, is indicative of a person “engaged to wait” and therefore entitled to compensation.
• How often is the employee actually required to respond to calls while on call? If it’s virtually certain that the employee will be required to respond to a call every time he’s on call, the on-call duty is more disruptive to his nonworking time and is more indicative of a person “engaged to wait” and therefore entitled to compensation • Are employees on call 24/7, or only certain hours per week or month, and can they switch their on-call time with colleagues if necessary for their personal purposes? If there is a set schedule for times when you are on call and you are allowed less freedom to change these times, this may be indicative of a person “engaged to wait” and therefore entitled to compensation.
• Does the “on-call” obligation significantly limit the employee’s use of the time for personal purposes? The less freedom an employee has while “on call” increases the likelihood that a person is “engaged to wait” and therefore entitled to compensation, however if the employee is able to use the on-call time for substantial personal projects and affairs, then court may find this time to be non-compensable under the FLSA.
Also, remember, if your “on call” time is compensable and increases the hours you spend at work beyond 40 hours, you may also be entitled to overtime pay as well. However each case is different and there are very few “bright line” rules as to when an employee is owed money or overtime pay for time spent on call.
Our Tennessee Law Firm handles cases dealing with “on call” and overtime claims and we would be glad to speak with you regarding your specific situation.