You asked: “When is on-call time considered work time and does that time count toward overtime pay?”
Renee answers:
Employers are legally obligated under the Fair Labor Standards Act (FLSA) to pay their employees for all hours worked. The law requires they pay no less than minimum wage for hours worked plus pay time and a half for any time worked over 40 hours in a work week. An issue of confusion for many employers is when to pay an employee for the time that they are “on-call”. Should that be considered time worked? The subject is further complicated by the calculation of overtime hours and overtime pay.
Generally, on-call time is considered “hours worked” if the employee is required to remain on the employer’s premises while on call, or so close to it that personal freedom is restricted. On the other hand, if the employee can remain at home, or simply inform the employer of their whereabouts and contact information, that time would not be considered hours worked.
While there are many circumstances that factor into a decision as to whether or not on-call time is hours worked, the ability to use that time for their own personal benefit is one of the most influential factors. Generally, if they can freely engage in their own personal activities, it will not be considered hours worked and the employer will not have to pay the employee for that time. However, the employer will have to compensate the employee for any time spent on-call performing job-related duties, such as answering telephone calls or responding to emails on the computer, even if the remaining time spent while on-call is not considered hours worked.
Besides constraints on personal freedom, employers should look at the following additional factors to consider whether or not on-call time is hours worked: (1) the geographical limits on the employee’s movement; (2) whether the frequency of calls are unduly restrictive; (3) whether the amount of time responding to calls is unduly restrictive; and (4) whether the employee has the ability to switch on-call shifts. This list, however, is only a guide and is not exhaustive. Employers should remember that each case is fact specific and each determination as to whether or not an on-call shift is considered “hours worked” should be made on a case by case basis, taking into account all relevant factors.
If time spent while on-call does constitute hours worked, those hours must be counted toward overtime. For example, a maintenance worker who worked 40 hours from Monday to Friday and is assigned four hours of on-call time on Saturday must be paid four hours of overtime pay at time and a half if those four hours meet the “hours worked” criteria. If that on-call time did not meet the criteria, but the worker was called to duty for two of those four hours, then those two hours must be paid at the overtime rate.
The Department of Labor is responsible for enforcing the FLSA and ensuring that employers comply with its requirements. It is important that employers understand the FLSA’s requirements as far as paying employees for on-call time and appropriately counting it toward the 40-hour threshold for overtime pay purposes. Failure to pay an employee for compensable on-call time, or any time and a half pay owed, can result in back pay to the employee and fines to the employer.
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