Does “On-Call” Mean “On the Clock”? Reviewing “On-Call” compliance with FLSA

Many professionals, such as doctors, firefighters, nurses, social workers, U.S. military, and even attorneys must remain glued to their cellphones in case they are needed on a moment’s notice.  This is usually just an accepted part of the job and a reason why they are paid comfortable salaries.  However, often there are hourly employees who are required to remain “on-call” for their employer.  They can be nursing assistants, drivers, and security personnel.  This practice is used to reduce burdensome labor costs while still having employees available in case of an emergency or sudden increase in business.
Compensation for this practice varies from industry to industry.  The federal Fair Labor & Standards Act (FLSA) 29 C.F.R. §785.17 has some pretty clear guidance on what can be considered a fair practice in regards to on-call time:

  • Working On-Call: An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on-call”.  This applies to waiting in the break room, parking lot, or office or remaining in the general vicinity without expressed freedom to move or travel a reasonable distance at will.
  • Not Working On Call: An employee who is not required to remain to the employer’s property or nearby, but is required to be reachable either at home or within a reasonable distance if needed.
  • On Duty: An employee is considered on duty when they are at work, even if they are not currently engaged in work-related activities, but unable to use their time effectively for their own benefit. Examples would be a receptionist reading a book or magazine while waiting for a client, or a bus driver listening to the radio while waiting for passengers to load.  If waiting is essential to the job duties performed, it is considered on-duty time and employees must be compensated.
  • Off-Duty: defined as time where a employee is relieved of duty and may utilize his/her time effectively for their own personal use.  Employer has no control over the activities of the employee and the employee may leave the employers premises to conduct personal business during the duration.  The employee must be told in advance of this freedom and cannot be restricted other than term.  These include scheduled meal breaks of a specified time or more extended periods of absence for medical appointments, etc.  This time does not have to be paid.

The above definitions apply only to non-exempt hourly employees.  However, if an employee’s working on-call time is significant enough to require substantial overtime pay that is not commensurate with their salary, exempt employees may have a claim under FLSA regulations.
If you have not been properly compensated for overtime, on-duty hours, or time spent working while “on-call,” then you may have a claim for damages under the Fair Labor & Standards Act.  The attorneys of Massey & Duffy are experienced in Unpaid Wage and Overtime disputes and have successfully represented employees in hundreds of FLSA claims.  Call (352) 505-8900 today for a FREE CONSULTATION.

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