Wage and Hour Attorney Best Answers: Am I entitled to compensation while you are on call? Should I be paid if I don’t get “called” while I am on-call? How much should I be paid for time spent on call? What is the best way to find an Ohio overtime lawyer?
Being “on call” is common in many lines of work, including doctors, police officers, tow truck drivers, firefighters, pharmacist, and even those who work in retail are all familiar with being a phone call away from having to begin work at a moment’s notice. Are you entitled to compensation while you are on call?
As is usually the case with the law, the answer is it depends. In trying to determine whether you are entitled to wages while on call, the critical question for wage and hour lawyers is whether you were “engaged to wait” or if you were “waiting to be engaged.” While it may seem like these two phrases are just different ways of saying the same thing, they actually describe the test fairly well. Specifically, was the employee’s time so controlled by the employer that they were “engaged” by the employer while awaiting work, or was the employee free to do their own thing with their time, until a call came in requiring them to work?
As you can imagine, trying to resolve this question is typically very fact intensive. Generally, the more restrictions the employer imposes on the employee’s use of their own time, the more likely it is that the time spent on call is time that employee must be paid for. As the Sixth Circuit Court of Appeals (Ohio) explained in Rutlin v. Prime Succession:
An employee must be compensated for on call time spent “predominantly for the employer’s benefit.” Aiken, 190 F.3d at 760. “The question in on-call cases is whether the employer’s restrictions on [its employees’] time prevent the employees from effectively using the time for personal pursuits.” Id. To be considered work time, an employee’s on-call time must be “severely restricted.” Id. This determination is fact-specific, and the circumstances of each case must be considered. Id. “The fact that some of the plaintiffs’ activities have been affected by the policy is not sufficient to make on-call time compensable. The plaintiffs must show that the policy is so onerous as to prevent them from effectively using their free time for personal pursuits.” Martin v. Ohio Turnpike Comm’n, 968 F.2d 606, 611 (6th Cir. 1992).
What if I don’t get “called” while I am on-call? An employee may be entitled to compensation for some of the hours they spend on call, and not entitled to compensation for other hours they spend on call. The test is whether the restrictions imposed by the employer on the employee’s free time are so onerous as to effectively prevent the employee from using their time for personal pursuits. In Rutlin, the plaintiff was expected to remain at home while on call, and he was required to answer his phone calls his employer received after hours, which were forwarded to his home. The plaintiff claimed that he would typically take 15 to 20 phone calls per night that he was on call, and that he would spend an average of one hour on the phone each night. The plaintiff further testified that the restrictions on his time prevented him from visiting his children, drinking alcohol, and boating, and that his meals, activities, and sleep were disturbed by his on call duties. The employer argued that because the plaintiff was given a pager, he was free to leave his home, and further, that the plaintiff was always free to trade his on call shift with other employees.
The Court found that when the plaintiff was taking phone calls, he was using his time primarily for the benefit of his employer, and was therefore entitled to compensation. However, the Court also found the other restrictions placed on plaintiff outside of when he took phone calls “were not so onerous as to require compensation…. [Plaintiff] was free to use that time for personal pursuits.” Critical to the Court’s analysis was how much the employer’s on call requirements inhibited the employees personal time.
How much should I be paid for time spent on call? The answer to this question is fairly straight forward: employees who work on call should be paid at least the minimum wage for all hours they work in which they are entitled to compensation, and should be paid overtime for any hours they work over 40 in a given work week. To that end, violations of the Fair Labor Standards Act (“FLSA”) or Ohio’s wage and hour laws can result in steep penalties for employers, to include liquidated (double) damages and attorney’s fees.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. Or, maybe you are being misclassified as an independent contractor. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call (216) 291-4744.
The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Am I entitled to overtime?”, “Does my job have to pay me for …”, “My paycheck is not right…” or “What do I do if…”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.