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Does Standby Time Count For Overtime Pay Calculations?

by | Sep 6, 2022 | Employment Law, Federal Law Update, Wage: Overtime |

Employees not being paid for all the hours they worked and not being paid overtime properly is a common issue our wage and hour attorneys examine here at Spitz, The Employee’s Law Firm. Wage Theft is a substantial issue facing employees in the modern workplace, with employers becoming less and less transparent with how their employees are compensated.

Does my employer have to pay me for time waiting for calls or assignments?

Wage and Hour Attorney Answer: Some employers try to deceive their employees by telling them that their time spent waiting on “standby” for a call or work assignment does not count as “work.” While employers will do things like this to skirt paying employees their earned overtime pay, the Fair Labor Standards Act (“FLSA”) is truly what determines what time is and is not compensable. Section 207 of the FLSA states that “for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

The Fifth Circuit Court of Appeals recently heard a case regarding these exact issues with standby time in Babin v. Plaquemines Parish, 2022 WL 3097852 (5th Cir. August 3, 2022). In Babin, a group of paramedics and EMTs sued Plaquemines Parish for unpaid overtime. The Parish did not pay these employees at time-and-a-half, even though they were working overtime. The Parish attempted to draw a distinction between time taking calls versus time spent waiting to be dispatched to the next emergency. At the lower court level, the judge instructed the jury that per the FLSA, “work time includes all time spent by an employee that was primarily for the benefit of the employer or the employer’s business.” While the lower court determined that time spent on standby does count as worktime, the court held that the employees failed to show the Parish failed to pay them properly for overtime at time and a half, even though it was ruled they were on standby for more than 40 hours a week.

On appeal, the Fifth Circuit Court of Appeals overruled the lower court decision. The Fifth Circuit found no evidence suggested the employees were ever paid overtime at time and a half, and the record indicated their standby time was over forty hours in each work week. The lower court already held standby time counts as working time, and because that time exceeded forty hours, the Parish owed the employees their properly calculated overtime pay. The key takeaway from the Babin ruling for employees is this: “standby time” is still compensable time that also counts toward an overtime calculation. An employee is on standby for the benefit of their employer or their employer’s business, so they must be paid for this time.

How do I sue my employer?

Best Employment Lawyer Answer: It is crucial for an employee with concerns about their overtime pay to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan and North Carolina to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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