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Must Employees Be Paid When On-Call?

by | Jul 19, 2022 | Employment Discrimination, Federal Law Update, Wage: Minimum Wage, Wage: Overtime |

Our wage and hour attorneys are frequently asked whether or not employees are entitled to be paid for the time they spend working “on call.” As usual, the answer depends. It as been a while since our wage theft lawyers have addressed this issue and a new case gives us that opportunity to do so. (Best Law Read: Top Overtime Lawyer Reply: How Does Pay Work For On-Call Time?; What Can I Do If I’m Not Paid For All My Hours?).  The Fair Labor Standards Act (“FLSA”) is a federal law that requires employers to pay employees a minimum wage for all hours work and time and half the regular rate for all time worked over 40 hours per designated work week. One of the big wage issues can be a fight over whether an employee is actually working or simply waiting to work while being on-call.

What does “on call” mean?

Best Wage Theft Attorney Answer: “On call” is a term that does not lend itself easily to being defined. Are you on call during slow periods at work, when you are waiting for the next customer, email, or phone call? Does it matter whether this happens while you are at the office, or working from home? What if you are not working from home, but are the designated person to receive phone calls over the weekend?

Am I supposed to be paid for on call time?

Best Wage & Hour Lawyer Answer: On-call times does not need to be paid unless failing to pay you results in a sub-minimum wage (based your total wages for the week) or the denial of overtime. This, in turn, depends on how much on-call time you are claiming to have worked. Even 15 minutes a week could result in an overtime claim if you are already working 40 or more hours a week. However, if you are working only part time, well under 40 hours a week, unpaid on-call time may not amount to a violation unless the work drops you below the minimum wage. Another factor is how much of the on-call time you try to count. Counting a couple of ten-minute phone calls or emails is one thing; counting an entire 24-hour period you were on-call is another.

Recently, in Stephen Buzzell, Jr. v. Florida Keys Ambulance Service, Inc., No. 4:19-CV-10190-JLK, 2022 WL 2116953, at *1 (S.D. Fla. June 13, 2022) the United States District Court for the Southern District of Florida had an opportunity to address these issues. The plaintiffs, consisting of a class of EMTs and Paramedics, argued that they each worked four, 24-hour “on-call” shift each week, and should have been paid for 96 hours per week, to include overtime, when instead the employer only paid them for the actual “work” they did when they got a call. The employer defended the case by arguing that the “waiting” time was not compensable under the circumstances and that it had thus not violated the law.

As the court explained, whether or not on-call time must be paid turns on how free you are to use your time for your own purposes when you are “waiting.” If you are free to use your time however you want, with the “on-call” status minimally interfering with your life, the time is likely not compensable. On the other hand, if the employer’s expectations regarding the on-call work are so onerous that it prevents you from engaging in normal life activities while on-call, it is more likely to be compensable:

Whether employees are working during on-call periods for purposes of the FLSA “depends on the degree to which the employee may use the time for personal activities.” Birdwell v. City of Gadsen, 970 F.2d 802, 807 (11th Cir. 1992). Time where an employee is “engaged to wait” is compensable time under the FLSA, and time that an employee is “waiting to be engaged” is not compensable time under the FLSA. Rodriguez v. Carey Intern., Inc., 2004 WL 5582173 at *4 (S.D. Fla. Sept. 15, 2004).

Here, both sides had very different takes on how free the plaintiffs were to use their time (and presumably, evidence supporting those positions). As a result, the court decided that only a jury could decide whether the entire 24 hours shifts needed to be paid, or only the work time:

Defendants argue that Plaintiffs time spent on-call was not severely limited and Plaintiffs were able to engage in meaningful personal pursuits. Defendants contend that the only restrictions on Plaintiffs’ on-call time was that they could not drink alcohol and had to respond to the calls within 30 minutes. On the other hand, Plaintiffs argue that their on-call time is compensable due to the nature of the work (which required Plaintiffs to be prepared to give life-saving interventions and medical treatment); geographic restrictions and short call response times; call frequency and duration; restrictions regarding wearing uniforms and Plaintiffs’ ability to sleep; and the disciplinary actions resulting from refusing to respond to a call which all severely restricted their time while on-call.

Plaintiffs state that Defendants discouraged EMTs from engaging in personal activities and provided sleeping quarters for on-call employees because some employees lived far away from the station. Plaintiffs claim their time was restricted in that they could not attend doctors’ appointments, care for children, entertain guests, go to the movies, or schedule deliveries or repairs at their home. However, Defendants state that Plaintiffs were free to go to the movies, go diving, go to the shooting range, go out to dinner, play video games, and sleep during their on-call time. Defendants also assert that Plaintiffs were free to switch the call for another unit if they could not make the call within 30 minutes. Therefore, the Court finds that there are still genuine issues of material fact, which should be decided at trial and summary judgment for both parties should be denied

What should I do if I think my employer is shorting my pay?

Best Ohio Wage Theft Attorney Answer: Wage and hour claims can be incredibly complex, requiring the understanding of nuanced and complicated federal regulations, statutes, and case law.  Most attorneys have never dealt with the FLSA and don’t know much about wage claims or what the law requires, so it is hardly surprising that many employers don’t understand the law either.

Importantly, wage claims have a “rolling” statute of limitations and every day you wait is a day lost on your claim. If you believe that the company you work for has failed to pay you all of your wages or has misclassified you, call the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. (Read: What is the Spitz No Fee Guarantee?) Call our lawyers in Cleveland, Columbus, Detroit, Toledo, Cincinnati and Raleigh to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and fighting for their unpaid wages.

Disclaimer:

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?”, “Can I be fired for demanding my overtime pay”, “Can the company that I work for make me pay them back part of my paycheck” or “What do I do if I am not being paid minimum wage”, 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.