FLSA FAQ: Properly Compensating Employees for On Call Time

Recently, we discussed the issue of a call center employer who took deductions for employees’ “idle time” while on duty, both at breaks and while waiting for their next work assignment.  As a follow up to that post, I wanted to discuss how the Fair Labor Standards Act (FLSA) regulations define “idle time” or “waiting time” for purposes of hours worked calculations.  As we discussed in yesterday’s post, under Sections 785.14-16 of the FLSA regulations, waiting or idle time is any time that employees are not performing the work for which an employer hired them, but are still subject to the direction of the employer or the constraints of a job.  Yesterday, we looked at idle time while on duty.  Today, we’ll discuss how to handle off duty and “on call” situations.

Off Duty, But On Call

Under the FLSA regulations, the key question to determine whether you must pay an employee for time spent on call is whether the employee is “engaged to wait” or “waiting to be engaged.”  Whether hours spent on-call is hours worked is a question of fact to be decided on a case-by-case basis. All on call time is not automatically considered hours worked under the FLSA.  Generally speaking, if an employer requires an employee to remain at a job site (or so close to it) that he or she cannot use the time effectively for his or her own purposes, that is compensable on-call time–the employee is “engaged to wait.”  (There is an exception for employees who work shifts of at least 24 hours, which we’ll discuss next week).  This is true even if the employee sits idle watching TV, reading a book, napping, or using a smartphone.  The employee is not generally free to go about his or her business.

However, if an employee is completely relieved of his or her job duties, can leave the workplace or job site, and can effectively use the time for his or her own personal purposes, this is noncompensable time.  This employee is “waiting to be engaged.”  As with our discussion yesterday about the unpredictability of idle time during on duty periods, for off duty, but on call, periods to be truly noncompensable, the employee must have sufficient time to take advantage of being relieved of duties.  Depending on the circumstances, having 10 minutes between call outs might not be noncompensable.

Drawing the line between being “engaged to wait” and “waiting to be engaged” can be difficult at times.  Several factors can impact this determination, such as response times.  If an employee is expected to report to work within 15 minutes of receiving a call, then that response time may significantly limit their ability to use idle time on call for his or her own purposes.  An employee who could handle calls remotely or who has 2 or 3 hours to report to work after a call likely does have enough flexibility to use idle time while on call for personal pursuits.  In that instance, only the time actually spent responding to the call would be considered compensable time under the FLSA.  Exactly where the response time becomes too short depends on the facts involved, including the location of the job site, how often calls occur, and what kind of preparation is required before responding.

Upshot for Employers

Get help with your fact situations, but consider these five factors when evaluating whether your employees’ off-duty, on-call time is compensable:

• Geographic limitations. If being on call requires employees to stay within a close geographic proximity, then consider compensating these hours as work site.  There is no hard and fast rule here.  Staying within a 5-minute drive of a worksite would almost always be compensable.  Staying within the county where the person lives might not.  Between the extremes, there is plenty of gray area.
• Movement restrictions. Sometimes the limitations are expressed in terms of movement, not geography.  If employees must remain tethered to a work site or even to their homes, it is likely that the DOL or a court would find this compensable on-call time.
• Response time requirements. Once again, there is no bright line rule for when a particular response time requirement tips the balance in favor of compensability.  A good rule of thumb is 45 minutes. In most cases, if an employee does not need to respond for at least 45 minutes–including any prep time or commuting necessary to get ready for the call back or call out–then most courts have found the time spent between calls will fall into the “waiting to be engaged” category.  Anything less than 45 minutes risks being found overly restrictive.  Even 45 minutes may be inadequate depending on the situation, so look at your specific facts.
• Uniform requirements. If employees must remain in uniform while on call, then this is often evidence that their personal use of time is restricted and the on call time is compensable.
• Frequency of calls. This factor is simple: the more calls your employees get, the more likely you will need to compensate them for the idle time between calls.  For example, the DOL has used the example of EMTs who have more calls in the winter due to poor road conditions, but fewer in summers when roads are in better shape.  During those times when the calls are more frequent, the employer may owe the EMTs wages for on call times.  This factor requires careful monitoring to ensure that what you think happens in theory reflects what actually happens in practice.  You may find that you need to compensate on call employees some weeks but not others.