August 1, 2008
David Hoskins, Neal Shah The Department of Labor (“DOL”) recently issued an opinion letter further clarifying the compensability of “on-call” time under the Fair Labor Standards Act (“FLSA”). Under the specific facts presented in the letter, the DOL held that ambulance rescue employees were entitled to compensation for time spent “on-call” during the winter season when they were asked, on average, to report to duty once every four-hour shift. Conversely, their “on-call” time during non-winter months, when they were asked to report to duty, on average, less than once per four-hour shift, was not compensable. See Wage and Hour Opinion Letter May 23, 2008.

Generally, “[a]n employee who is required to remain on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call.’” 29 C.F.R. § 785.17. Conversely, when an employee is “on call” and is free to come and go as he/she pleases and is also able to engage in personal activities during periods of idleness, their time is not compensable. See 29 C.F.R. § 553.221(d).

The DOL addressed the compensability of ambulance workers who normally worked from 8:00 a.m. to 4:00 p.m. and were “on call” from 6:00 a.m. to 8:00 a.m. and 4:00 p.m. to 6:00 p.m., five days per week. During “on-call” times, the employees must stay within a specific area and be able to respond to a call, with the ambulance, within eight minutes. The employees were paid overtime for each call, but were not compensated for the down time between calls.

Although no one factor is dispositive in determining the compensability of “on-call” time, the DOL was specifically concerned about the limitations of the “on-call” work and whether they prevented the employees from pursuing their normal pursuits. Similarly, federal courts also evaluate whether the employee can use “on call” time effectively for personal purposes, such as whether there are excessive geographical restrictions on an employee’s movement, whether the frequency of calls is unduly restrictive, whether a fixed time limit for response is unduly restrictive, whether the employee could easily trade “on call” responsibilities, whether the use of pager could ease responsibilities and whether the “on call” policy was based on an agreement between the parties. See Wage and Hour Opinion Letter May 23, 2008 (citing Reimer v. Champion Healthcare Corp., 258 F.3d 720, 724-25 (8th Cir. 2001); Pabst v. Okla. Gas and Elec. Co., 228 F.3d 1128, 1132 (10th Cir. 2000); Ingram v. County of Bucks, 144 F.3d 265, 268 (3rd Cir. 1998)).

In the situation at hand, the DOL held that the winter season was sufficiently restrictive to make it compensable under the FLSA. The DOL based its decision on the high number of call-ins during the winter months (requiring on response every four hours); the short in-person response time (eight minutes), which precludes the effective use of “on call” time; the inability of employees to trade “on call” responsibilities because both employees were “on call” five days a week; the restricted geographic area the employees could travel because of their eight minute response time; and the inability to turn down any of the call-ins. Although many of these restrictive conditions existed during the non-winter months, the DOL found the “one call per every four hours” restriction during the winter months enough to push it over the edge in terms of compensability.