Employment: New DOL Opinion On Whether On-Call Time Is Compensable
An employee is “on call” when he or she must be “available” to work at times in addition to his or her regular schedule. If you call your non-exempt employee to work during the on call period, you have to pay the employee for time worked. Do you have to pay your employees when they are “on call” but not actually working? Well, that depends on a lot of things. The bottom line is whether your employees are free to do their own thing while waiting for your call.
Generally, if your employee lets you know where he or she can be reached during the on call period, but is not required to stay at work, then your employee is not considered to be working while on call. So, if your employee carries a cell phone or pager, and must report to work within a specific, reasonable time after a call, then you are not required to compensate your employee for on call time. But, if your on call requirements seriously limit your employee’s ability to use the on call period as personal time, then your employee is considered to be working while on call and must be paid for that period.
The Department of Labor, and then the courts, have considered a number of factors when trying to decide if employees are working or just on call. For example, geographical limitations may interfere with an employee’s freedom to use on call time as personal time. Although most employers don’t actually state a geographic limitation in their on call policies, they always state a response time. And when that response time is very short, it limits the distance from work that an employee can travel, and thus limits an employee’s freedom. Another factor frequently considered, is the number of call-backs employees actually receive during the on call period. If call-backs are frequent, the employee has very little freedom to take advantage of the on call time. One court has found that four to five call-backs a week did not limit an employee’s freedom to use the call back period for his own purposes. On the other hand, another court found that three to five call-backs in a 24-hour period significantly limited an employee’s freedom and required the employer to pay the employee for that time.
One thing is clear. The determination of whether an employer must pay an employee for the on call period is always a question of fact and must be considered in the circumstances of a particular job and the specific requirements of the on call policy. But, the Department of Labor and the courts have issued many opinions over the years which narrow the gray area and provide some meaningful guidance to employers. If you have questions about your on call policy, we can help.
By Rebecca M. Fowler, firstname.lastname@example.org