If you use on-call employees, it’s important to understand when you have to pay for their on-call time. In a recent case, an employer failed to properly compensate its on-call workers and was clobbered with a steep bill for two years of back overtime. We’ll provide guidance to help you determine when you must pay for on-call time.
Technicians On Call Nights And Weekends
Oklahoma Gas & Electric (OG&E) employed five technicians to monitor the automated heat, fire and security systems in several OG&E buildings. They were also on call to monitor the building alarms during their off-premises times: from 4:30 p.m. to 7:30 a.m. weekdays and continuously on weekends.
Alarms came directly to some technicians’ home computers. They were also required to carry pagers. Each technician received an average of four alarms per night and took about 45 minutes to complete a response to each one. Failure to start responding to the alarms within 15 minutes was grounds for discipline. OG&E instructed the technicians to report only the on-call time they actually spent handling an alarm as paid time. But because the pagers were unreliable and a fast response time was required, the technicians had to remain close to home when they were on call.
The HR Management & Compliance Report: How To Comply with California Wage & Hour Law, explains everything you need to know to stay in compliance with the state’s complex and ever-changing rules, laws, and regulations in this area. Coverage on bonuses, meal and rest breaks, overtime, alternative workweeks, final paychecks, and more.
Interference With Sleep, Personal Activities
Although many alarms could be fixed by remote computer so the technicians didn’t always have to leave their homes, they claimed that the frequency and duration of alarm responses severely disrupted their sleep habits. And when they were on call during the day, they said they couldn’t pursue many personal activities because they had to check their computers every 15 minutes.
Employees Sue For Overtime Violations
The technicians sued OG&E for back overtime. They claimed that they should have been paid for all the time that they were on call, not just the time spent responding to alarms. A federal trial court agreed and awarded them unpaid overtime going back two years based on 15 hours of on-call time per weekday and 24 hours on Saturdays and Sundays. OG&E appealed.
Factors To Consider
The federal appeals court said you must consider these factors in determining when pay is required for on-call time:
- the degree to which the burden on the employees interferes with their personal pursuits;
- the number of calls; and
- the required response time.
Overtime Award Upheld
Applying the factors to this case, the court upheld the verdict, finding that the technicians’ on-call time should be counted as work time. The court compared the technicians’ circumstances to a previous case involving firefighters and found the similarities to be striking: The firefighters also received about four calls per on-call period and had to respond within 15 minutes. That the technicians, unlike the firefighters, often didn’t have to report to OG&E’s workplace to respond to calls didn’t change the result. The technicians’ lighter burden was offset by being on call during all of their off-premises time, while the firefighters were only on call for six 24-hour shifts every 19 days.
Practical Pointers
The key question for determining whether you have to compensate an employee for on-call time is whether that time can be used effectively for the employee’s personal purposes. For example, an employee who must remain on the employer’s premises typically can’t use that time effectively for personal pursuits.
Note that the time an employee is required to wear a beeper or have access to a cellular phone doesn’t ordinarily qualify as work time. But if the employee isn’t free to effectively use this time for their own purposes because, for example, of repetitive beeping or calling, it should be counted as hours worked.