The treatment of on-call time depends on how much control the employer has over the employee and whether the employee can effectively use on-call time for personal activities. An employee who is required to remain on call on an employer’s premises or so close thereto that the employee cannot use the time effectively for his own purposes is "working." An employee who is not required to remain on premises, but is merely required to leave word where he/she can be reached generally is not deemed to be working while on call.
Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits.
Litigated cases generally involve the issue of whether various restrictions on an on-call employee so interfere with the ability to use the time for personal pursuits as to render the on-call time compensable. Factors considered include:
- geographical restrictions;
- required response time;
- frequency of calls during the period;
- use of a pager (which gives the employee freedom to be away from a telephone);
- extent personal activities are actually engaged in during on-call time;
- provisions of any employment agreement as to treatment of on-call work;
- length of time employee is on call (i.e. periodic duty versus continued on-call status);
- degree to which employees can trade on-call responsibilities; and
- whether the nature of the work precludes the employee from engaging in certain activities, such as drinking alcohol, while on call.
Court decisions are not entirely consistent in applying these factors. Usually though, an employee who is on call whether by beeper or proximity to a telephone; who is required to be able to report for duty in a sober state within a reasonable response period (e.g. 20-30 minutes); who is not called so frequently as to significantly interfere with personal use of the time; and who is given periodic relief from on-call duty, will not have to be compensated for on-call time.
In this regard, the United States Department of Labor, which enforces and interprets the Fair Labor Standards Act has reinforced and re-affirmed these principles. See Wage-Hour Opinion Letter No. 2169 (July 12, 1999) (on-call time not compensable where employees carried pagers and were required to stay within the geographic range of the pager); Wage-Hour Opinion Letter No. 2027 (March 11, 1997) (on-call time not compensable where employee carried pager, even though required response time was only ten minutes); Wage-Hour Opinion Letter No. 1939 (May 28, 1998) (employees who carried beepers and were required to respond within twenty minutes not entitled to compensation for on-call hours).
Significantly, whether the employee has volunteered for the on-call assignment and/or has the right to refuse an assignment once called does not impact on the above analysis. In Wage Hour Opinion Letter No. 2169 (July 12, 1999), the employees voluntarily signed up to be on-call and also had the right not to respond to calls when they were in an on-call status. The DOL did not focus at all on the voluntariness aspect of the matter, but simply examined whether the conditions relating to the on-call arrangement were unduly restrictive, concluded they were not, and ruled that the on-call hours were not compensable. In these circumstances, the normal rule applies, meaning that compensable work time begins when the employee gets the call and responds to it.