Many employers with on-call members on their teams, grapple with the issue of determining what is compensable time for time spent on-call. Here are some scenarios that might help clarify those questions:
In accordance with the FLSA, employee’s are required to be paid for the time they work (employee’s are also to be compensated at a rate of time and a half for any hours worked past the 40 hour work week standard).
Determining the specific circumstances under which an employee will be “on-call” will help in determining whether or not an employee’s on-call time is compensable.
Although an employee may be required to remain within a certain distance of their work location or refrain from alcoholic consumption, but are still allowed to use their time on-call as they wish, the on-call time need not be considered hours worked and therefore are not compensable. This is not the case for employees who are required to remain at the employer’s site (even though they are allowed to use their on-call time as their discretion), employees must be compensated for those hours spent waiting.
For those employees who are not required to remain on site but are required to remain accessible via some form of mobile communication device, other considerations must be taken into account. If the “employee is interrupted to such an extent the he or she cannot conduct his or her regular activities, the employee probably cannot use the on-call time for his or her own purposes. For example, if he or she is unable to finish a meal, read a story to his or her child or read a newspaper during the same on-call period, he or she probably cannot use the time effectively for his or her own purposes.” (U.S. DOL – Office of the Assistant Secretary for Policy) In this instance the on-call time should be considered hours worked, and therefore compensable.
Every employer is different and will have different circumstances surrounding the on-call status of their employees, its important to keep your HR team (and legal if available) involved throughout the determination process. Also, periodic re-assessments of employee on-call responsibilities will keep you ahead of the curve if business circumstances change and will help mitigate your risk of any FLSA violations and the costs associated with it.
U.S. DOL – Office of the Assistant Secretary for Policy. (n.d.). FLSA Hours Worked Advisor. Retrieved 06 14, 2014, from Unites Sates Department of Labor: http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER82.asp