Anyone who works on a computer knows the sinking feeling that comes with hitting that nasty combination of keystrokes causing your machine to freeze. The fact that many companies now keep IT staff available around the clock just to help frantic employees get their misbehaving computers working, retrieve lost documents and resolve other technology-related problems speaks volumes about the reality of the modern workplace.
Of course keeping any department fully staffed 24/7, just to handle emergencies, may not be practical. Many organizations instead keep workers on call, i.e., not physically present at the workplace but still available to answer phone calls, respond to emails or address other crises off hours. When on-call workers are hourly, their pay is governed by strict rules. Employers who fall out of compliance not only risk alienating staff. They increase their exposure to lawsuits and, in addition to owing back wages or overtime, may also face fines.
The law in this area is still developing. But the courts have given employers a pretty good idea of what factors they consider key when ruling on disputes involving oncall worker pay.
The first question asked by any court reviewing such claims is whether various employer restrictions keep employees from doing whatever they normally would be doing were they not on call. Courts distinguish between employees who are “waiting to be engaged” and those who are “engaged to wait,” finding only the latter time to be compensable on an hourly basis. The degree to which the on-call employee is free to engage in personal activities also is a key consideration.
An employee who is free to engage in personal activities despite being available to take calls or report back to work is not entitled to be paid on an hourly basis. The degree of freedom to pursue personal activities need not be equal to the level of flexibility one has when completely off duty. In 1994, the 9th Circuit in Berry v. Sonoma, noted several factors that courts still use to gauge an employee’s degree of freedom:
whether the employee is required to stay in a particular area or workplace while on call;
whether the employee must live on the employer’s premises;
whether the employee kept so busy that the on-call period is virtually a full shift;
whether the employee must respond immediately;
whether the on-call employee can trade responsibilities with co-workers easily;
whether an on-call employee is allowed to engage in personal activities while on on-call.
Geographic restrictions alone rarely are enough to sway a court to require that a worker be paid while on call. Similarly, requiring an employee to remain within range of cell phone reception, without additional limitations, generally will not make or break a case.
Because courts often pay attention to the number of calls an on-call worker receives when determining whether the time is compensable, employers should, too. In Berry, the court found that coroners who received one “death report” every 3.97 hours while on-call were not entitled to hourly pay when other factors showed that they were free to use the remaining time for personal pursuits. Similarly, the 6th Circuit ruled in Rutlin v. Prime Succession, Inc. that a funeral director who received an average of 15 to 20 calls each night and had to respond to additional calls, but who was nonetheless free to watch television, make personal calls, engage in activities with his spouse, and go out to dinner also was not due hourly pay. Even requiring a worker to stay sober while on call — and to be able to return to work within 20 minutes of being paged — is not enough to require supplemental pay during the on-call period, as the 5th Circuit held in 1991 in Bright v. Houston Northwest Medical Center Survivor, Inc.
Two years later, the 10th Circuit reached a similar conclusion in Gilligan v. City of Emporia, Kan. In that case, city sewer department employees who wore pagers, were barred from drinking alcohol, and who had to refrain from activity preventing them from hearing a page, but had 30 to 60 minutes to respond to a call, were found not to be entitled to hourly pay.
Courts do, however, look at how busy a worker is kept during the on-call period when determining whether the time is compensable. Taking and responding to calls totaling one hour of time on a shift between 6:00 p.m. and 8:00 a.m. the following morning and not more than three hours on weekend shifts from Friday afternoon to Monday morning may not justify hourly pay. However, in Renfro v. City of Emporia, Kan., the city was tagged with hourly pay when its firefighters received an average of three to five calls while on call during 24-hour shifts.
As is often the case in employment law matters, employment disputes are most likely to crop up when organizations have not explained to employees what they can expect in the way of overtime pay. Supervisors who assign employees to work on call or hire outsiders to work such shifts should, at a minimum, have a written policy explaining the on-call pay policy. In addition, they should have a handle on the workload of their oncall workers and understand the other factors that may trigger a pay requirement.
Arthur Silbergeld is a partner at Dickstein Shapiro in Los Angeles. He can be contacted directly at SilbergeldA@dicksteinshapiro.com.