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Engaged to be Waiting, or Waiting to be Engaged?

By January 15, 2019December 16th, 2022HR, Legal, Payroll

On Call SituationsOne of the most common questions for employers determining compensable time is how to handle on-call situations. If an employee is on-call, is he or she eligible to be paid for the on-call time? The answer lies in the restrictions the employer places upon the worker during the on-call period. To make this determination, there are two key questions that employers should consider.

1. Does the employer control the location where employees must wait?

Per the Department of Labor (and the Fair Labor Standards Act), if employees are required to remain on the employer’s premises (in an on-call room at a hospital, for example) or the location is otherwise restricted by the employer (e.g., the worker must be no more than 10 minutes away), employees are being “engaged to wait” and the time is compensable.

2. Are employees able to use the on-call time effectively to engage in personal activities?

Even if workers are not required to wait at a specific location or stay within a designated geographical area, their on-call time may be compensable. If, during on-call periods, employees must be available to report for duty so quickly—or are interrupted so frequently—that they cannot effectively engage in personal activities, the employer must compensate them for the on-call period.

If neither of these situations apply—for example, if workers are required only to let the employer know where they are, and they are given reasonable notice if they are called in, the entire on-call period is not compensable (the worker is “waiting to be engaged”). However, certain portions of the on-call time might still count as paid work.

Following are a few more pointers from the FLSA about on-call periods:

  1. An employer can require on-call employees to carry pagers or cell phones during on-call periods so they can be contacted if necessary.
  2. The employer may establish rules governing use of alcohol during on-call periods.
  3. The employer may establish rules relating to activities provided that employees can still use on-call time to engage in personal activities, such as cutting the grass, going to the movies, going to a ball game, or other activities of their choosing.
  4. If personnel are unable to complete basic activities without interruption—finish a meal, read a story to a child or read a newspaper, for example—they probably cannot use the time effectively for their own purposes.
  5. All time spent answering calls from, and speaking to, employers or their representatives is compensable. For example, if an on-call maintenance technician helps another technician complete a service call via the phone, the FLSA considers it work time.
  6. The FLSA recommends that on-call situations be evaluated on a case-by-case basis to ensure compliance with the law.
  7. The FLSA has not defined “reasonable notice” for on-call and other mutable work situations. Employers should consider (and publish in policies) a prudent expectation, given the location of workers, to avoid a potential violation. For example, a one hour response if an employee is called in is probably reasonable. Requiring a 15 minute response likely is not.

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