Summary: Determining whether an employee is able to be paid for time spent on call is a rather complex and fact intensive inquiry. Indeed, the absence or presence of a facts can be the difference in being owed thousands of dollars in unpaid wages. In this blog I aim to bring a bit of clarity to the issue. 

Many employers require their employees to be on call even after hours, yet they refuse to pay them for the time that these employees spent glued to their phones. For many salaried or exempt employees this is of no consequence. On the other hand, if you are a non-exempt hourly employee, you may be entitled for compensation for the time you spent on call. That is because even though you may not be working, the restrictions put on you may be to such an extent that an employer must pay you for that time under the law. 

 While state law does not squarely address the issue of when on call time can be compensable, the Fair Labor Standards Act and accompanying case provides some guidance. This inquiry though is not always a straightforward question. In fact, it is one that is rather fact intensive in nature. The critical question that one must answer about the time spent on call is whether “the employee can use the time effectively for his or her own purposes.” Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 676 (5th Cir. 1991)(internal citations omitted). In Bright the Fifth Circuit engaged in an analyzed of how much the freedom the employee had during the on call time. In interpreting this standard various courts have looked at if the employee is expressly forbidden from doing certain activities, traveling outside of a certain area, the amount of calls they receive a day, the interference from engaging certain leisure activities, and going out for social engagements. 

 To put it another way, the closer an employee is to being able to do what they normally would do if they were not on call the most likely that on call time is not compensable time. Conversely, the further away they are from being to engage in their normal activities, the more likely it is that the time they spent on call is compensable.

 Let’s put forth an example to illustrate the point. Let’s assume that an employee works 30 hours a week, but they are required to be on call for 20 hours a week for which he is not paid. If he is required to come in to work or perform work during the on call schedule, he is compensated adequately. But, when he is on call the employer has imposed a myriad of restrictions which include that he cannot be more than 15 minutes away from the work site, cannot leave his home unless it is an emergency, is unable to drink any alcohol, and cannot be engaged in any social activities. Under this scenario a court would most likely find that the time that he spent on call is actually compensable time. The reason for this is easy to see. It cannot be fairly said that the employee has a similar degree of freedom on his on call time that he does to his free time. Because of that the employee should actually be paid 40 hours at his regular hourly rate and 10 hours at his overtime rate a week. Week after week this amount can grow and become rather substantial. 

 While the example above is rather clear cut, the main take away should be is that these inquiries are very fact specific. In fact, courts have noted that they is rarely, if ever, is a bright line rule for these types of cases. Instead, the decision of whether on call time is compensable must be made on a case-by-case basis. That is why it is it is imperative to seek out an attorney that specializes in employment law so your situation can be adequately evaluated. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. If you feel like you should be compensated for your on call time, feel free to contact us to schedule an appointment with one of our attorneys.