Fair Labor Standards Act – When on-call time is recognized as hours worked

There are many different employment positions and/or professions, such as nursing positions to repair type positions, etc., that may require an employee to remain available or on-call after their shift ends. The question most often asked is whether on-call time is hours worked for purposes of minimum wage and overtime. To answer this question we will review on-call conditions and the Fair Labor Standards Act (FLSA) that governs the rules of on-call time.

On-call conditions

When an employee is on-call they are waiting to be called upon by their employer or supervisor to perform a task, this is typically called waiting to be engaged. Depending on the company or employer’s on-call policy, the on-call conditions may vary. Some on-call conditions may require the employee to have a cell phone or other means of communication at all times. Other on-call conditions may prohibit the employee from drinking alcohol, or there may be a required response time when called upon. Some conditions may require the employee to remain on the employer’s premises. Depending on the circumstances some conditions can be non-restricted or restricted; which is generally examined to determine if the on-call time is hours worked.

Non-restricted conditions

Non-restricted conditions enable the employee to use time effectively for their own personal use while on-call. For example, a nurse may be required to carry a cell phone and return to the employer’s premises within thirty minutes after being called, but the nurse is free to sleep, visit with friends, or go shopping. This is considered non-restricted conditions. In most cases, non-restricted conditions is time an employee can use effectively for their own purposes and therefore is not considered hours worked. 29 C.F.R. § 785.17

Restricted conditions

Restricted conditions, on-the-other hand, restricts the employee from effectively using the time for personal use. For example, if the on-call nurse was burdened with calls from the employer such that the calls prevent free use of time, or the conditions impede the nurse from using the time effectively for personal use, then the on-call time could be considered hours worked. 29 C.F.R. § 785.17

Conclusion

As you may have noticed there are many factors to consider when answering the question whether on-call time is hours worked for purposes of minimum wage and overtime. As a general rule, if the employee is waiting to be engaged with freedom to effectively use their time for personal uses without burden then this time is not considered hours worked. Nonetheless, circumstances and/or on-call conditions can be confusing, it is best to consult with a lawyer who specializes in the employment laws governing on-call time.

Below are links to other topics covered in our FLSA – Hours Worked series:

* States may have their own minimum wage and overtime laws, including their own standards for when an employee must be paid for waiting time. Employers are required to apply the federal or state minimum and overtime law that provides employees the greatest benefits. For more information on state minimum wage and overtime laws, visit our pages on minimum wage and overtime.

Contributed by Suzanne Mathews
 

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