Trying to determine if an employer is obligated to pay an employee for on call time or standby time can be difficult. The regulations state: An employee who is required to remain on his or her employer’s premises or so close thereto that he or she cannot use the time effectively for his or her own purposes is working while on-call. See 29 C.F.R. § 785.17. Whether hours spent on-call are compensable is a question of fact to be decided on a case-by-case basis.
Some employees are required to remain on the employer’s premises or at a location controlled by the employer. For example a hospital employee who must stay at the hospital in an on-call room. While on-call, the employee is able to sleep, eat, watch television, read a book, etc. but is not allowed to leave the hospital. Other employees are able to leave their employer’s premises, but are required to stay within so many minutes or so many miles of the facility and be accessible by telephone or by pager. An example of this type of employee is an apartment maintenance worker who has to carry a cell phone or pager while on call and must remain within a specified number of miles of the apartment complex.
If while on-call you are required to remain on the employer’s premises, or another work site, then all time spent on-call is generally considered hours worked.
If while on-call you are not required to remain on the employer’s premises but merely required to leave word where you can be reached, then you are not working while on-call. However, you must also be able use the on-call time effectively to engage in personal activities. You can still engage in personal activities even if the employer requires you to be accessible by telephone or paging device. The employer may also establish rules governing use of alcohol or participation in other activities while you’re on-call, since you can engage in personal activities, like household chores, going to the movies or a ball game, or engaging in other activities.
Another consideration in determining whether on-call time can be effective used for personal use is the frequency of the work calls received during your on-call time. If your employer interrupts you to such an extent that you cannot conduct your own personal activities, then the on-call time could be considered compensable, but the interruptions must be considerable. Considerable interruptions would be an inability to finish a meal, read a story to your child or read a newspaper during one on-call period.
Even if while on-call you can use your on-call time for your own purposes, the employer must still pay you for all time spent responding to calls. The following factors have a bearing on determining if on-call time is compensable:
- How frequently are you required to be “on call?”
- How frequently are you actually called into work?
- If you are a non-resident employee, how frequently are you required to return to the job site to handle the problem as opposed to handling it over the phone?
- Can you engage in personal activities while “on call”?
- How much time is typically spent responding to a call?
- Are you required to respond to a call within a certain amount of time? If so, what is that time period?
- Are you allowed to “switch” your “on-call” days with co-workers?
Although this inquiry is highly fact-driven, the court’s application of these factors in Leonard v. Carmichael Properties & Management Co., Inc., 614 F. Supp. 1182 (S.D. Fla. 1985), is particularly instructive.
InLeonard, a “caretaker” at an apartment community filed an action for unpaid overtime compensation. In connection with this claim, the caretaker asserted that he should be compensated for all “on-call” hours. The evidence showed that the caretaker, who resided in the apartment community, performed general maintenance at the building from 8 a.m. to 5 p.m. on weekdays. He was also required to be “on call” from 5:30 p.m. to 8 a.m. on weekdays and all day on Saturdays and Sundays.
To respond to after-hours emergencies, the caretaker carried a beeper and stayed within close proximity to the building; however, he was free to leave the property as he wished and to engage in personal pursuits. Indeed, the evidence showed that he went grocery shopping, attended church and entertained friends while “on call.” Under these circumstances, the court concluded that the caretaker was not entitled to compensation for his “idle time” spent waiting for calls.
In contrast, in Harris v. Mercy Health Corp., 2000 WL 1130098, No. 97-7802, *4 (E.D. Pa.Aug. 9, 2000), the court held that a reasonable jury could find that the employee was entitled to compensation for on-call time where the evidence showed that, although he was permitted to leave his home during his “on-call” hours, he was “on call” seven days a week for 24 hours per day, received up to 50 pages per week, and spent from 10 minutes to 40 minutes responding to each page. See also Renfro v. City ofEmporia, 948 F.2d 1529 (10th Cir. 1991). It found that on-call time was compensable because the employee was paged three to five times per day, which significantly restricted his personal activities.
If you think your employer has wrongfully denied you on-call pay, contact Denver Employment Attorney Gregory A. Hall at 303-320-0584. http://adenverlawyer.com/
The information on this blog or website is not legal advice. Contact Mr. Hall to set up an appointment to evaluate your case.
Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206