Not everything in life or business can wait. If you work as a healthcare professional, maintenance technician, emergency response personnel, or IT technician you’ve likely had your personal time interrupted by work outside your usual hours. After all, heart attacks, HVAC unit failures, house fires, and server crashes don’t always happen between 8 a.m. and 5 p.m. For employees who are entitled to receive overtime pay, this often prompts the question: When I am on-call and waiting for work, does my time spent waiting count as hours worked for assessing overtime?
Recently, the United States Court of Appeals for the Tenth Circuit provided a helpful guide to answer this question in Barnes v. Omnicell, No. 23-1336, 2024 WL 2744761 (10th Cir. May 28, 2024).
The plaintiff, Larry Barnes, worked for a company named Omnicell providing technical, maintenance, and repair support for medicine dispensers sold by Omnicell to healthcare facilities and pharmacies. Mr. Barnes worked a typical 40-hour work week assisting Omnicell’s clients and was also required to respond to service requests after hours. Omnicell paid Mr. Barnes his usual rate for the 40-hour work week and overtime pay when he responded to after-hours service requests.
However, Mr. Barnes sued Omnicell to collect more than $2 million in unpaid overtime because “he was on duty 24 hours a day, 7 days per week.” Essentially, Mr. Barnes argued that for each seven-day week of 168 hours, he worked 128 hours of overtime because he was always waiting on-call to respond to after-hours service requests for Omnicell.
Now, common-sense intuition tells us that this is likely too good to be true for Mr. Barnes and, at least in this case, the law agrees with common-sense. Yet, Mr. Barnes, finding no wage and hour attorney willing to take the case, filed suit all by himself (pro se), lost, then appealed, and lost again.
But how did the Tenth Circuit reach its decision? And when does waiting on-call count as hours worked? Let’s get into this.
How is overtime calculated?
Entitlement to overtime pay is a federal right of certain employees established by the Fair Labor Standards Act, commonly called the FLSA. The overtime provision of the FLSA has the dual benefit of promoting a healthy work-life balance for employees and reducing unemployment by encouraging employers to hire more employees to avoid paying overtime.
As a general rule, the overtime provision of the FLSA entitles non-exempt employees to 1.5 times their regular rate of pay for any hours worked over 40 hours in a single week.
For example, a non-exempt employee who works 50 hours in a single week at a regular rate of $20/hour is entitled to be paid $20/hour for the 40 regular hours worked and $30/hour for the 10 overtime hours worked.
This complex rule has many nuances that you can read about on our blog.
Best Overtime Law Blogs on Point:
- Most But Not All Employees Are Entitled To Overtime
- Fair Wage Alert: How Your Minimum Salary is Changing
- There’s $4 Billion In Overtime Wage Theft Every Year – How Much Of That Is Yours
When do hours spent waiting on-call count as “hours worked” for the FLSA Overtime Law?
The Tenth Circuit considered four factors to answer this question:
- Whether time spent waiting is primarily for the employer’s benefit: The more integral waiting on-call is to your job, the more your employer benefits from your wait and the more likely that your wait is hours worked. Conversely, the more free time you have to run to the store, cook dinner, or sleep makes your wait less likely to be hours worked.
- Whether an employee is required to remain on the job site while waiting: The more your employer restricts your movement during your wait, the more likely your wait is hours worked. For example, a healthcare professional waiting on-call at a hospital is likely to be working.
- The callback frequency while waiting: The greater the number of callbacks, the more likely your wait in between calls is hours worked.
- The level of readiness an employee must maintain while waiting: The more effort required to prepare to respond to a callback, the more likely your wait is hours worked. For example, a firefighter waiting with the readiness to respond immediately to protect the community in dangerous situations is more likely to have their wait be hours worked.
The Tenth Circuit held that Barnes’s wait time on-call failed each of these tests to count as hours worked under the FLSA. Barnes was free to engage in personal activities while waiting for work with little interference. He was not required to remain on or near Omnicell’s premises. The after-hours calls were infrequent; he received no service requests on at least half the days on-call and had up to six hours to respond. Lastly, Barnes’s wait required a low level of readiness. Responding to a callback was usually resolved by troubleshooting over the telephone and occasionally through onsite visits.
Best Wage and Hour Attorney Blogs on Point:
- Must Employees Be Paid When On-Call?
- Top Overtime Lawyer Reply: How Does Pay Work For On-Call Time?
- Are Nannies, Butlers & Maids Entitled To Overtime Pay?
- What Can I Do If I’m Not Paid For All My Hours?
What else can we learn from Barnes’s case?
Good attorneys will help you not bring bad claims. Barnes represented himself in this case without the assistance of an attorney. This is a bad idea. Without proper legal representation and guidance, Barnes brought a weak claim based on largely inadmissible evidence.
Had Barnes sought advice from an experienced employment law attorney he could have saved himself a lot of time and money filing this claim that was likely not worth pursuing.
If you believe your employer is not paying you for your on-call waiting periods it is important to hire an experienced wage and hour attorney to help you understand your options under the law.
Further, if you have been denied overtime pay, you may be entitled to recover back pay, liquidated damages, and attorney’s fees, which gives you a bargaining token to force an employer to pay you what you are owed quickly, rather than dragging things out in hopes that you just give up.
If you believe that you have been denied overtime pay, it would be best 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; Employment Law: Avoid Hiring The Wrong Attorney). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.
Disclaimer:
The information provided in this blog is intended for general informational purposes only and should not be considered legal advice. The topics discussed, including wage and hour issues, overtime, wage theft, on-call work, and the Fair Labor Standards Act (FLSA), are complex and fact-specific. While we strive to provide the best possible guidance, every situation is unique, and the outcome of any legal matter can vary based on the specific circumstances.
Reading this blog does not create an attorney-client relationship, and the information provided should not be relied upon as the best course of action for your legal needs. If you are dealing with wage and hour disputes, unpaid overtime, wage theft, on-call work issues, or FLSA violations, it is crucial to consult with a qualified attorney to discuss the best legal strategy for your case. Choosing the best law firm or attorney to represent your interests is essential to protecting your rights and achieving the best possible outcome.