Are on call and waiting time for employees compensable?

Law column

In theory, the Fair Labor Standards Act sounds easy: Employees must be paid for actual “work” performed for their employer, whether on the employer’s premises or off-site.

However, in reality the law often is difficult to implement. The key factor is whether an employee actually is engaged in performing “work.”

For example, waiting time is a component of most jobs in some form or another. Accordingly, if an employer requires its employees to show up 15 minutes before their shifts start, must those employees be paid for that time?

The likely answer is, yes, employees who are required to arrive at a location and then wait for assignments must be paid for their waiting time. That time must be counted toward the 40-hour overtime calculations.

So for example, the secretary who checks Facebook between typing tasks, the messenger waiting for his next assignment, the firefighters waiting for an emergency call and the pizza delivery person who must return to the store after making her first delivery of the day are all employees who are not completely relieved from duty, and their time spent waiting is compensable.

Waiting time is not “on call” time, but closely related. Many jobs require an employee to remain available or “on call” after their shift ends. Such employees may or may not be on company time when they are “on call.”

For example, if an employee merely has to carry a cellphone and return to work, that time is not compensable. However, if the employer places more onerous restrictions on off-duty employees’ time — taking multiple calls, little or no advance notice to immediately return to work, or strict restrictions on travel and alcohol consumption — then the employee is “on call” and that time may be considered hours worked and compensable.

But the advance-notice time requirement for employees appears to carry the most weight with courts. For example, one Wisconsin court ruled that a 15-minute window in which on-call nurses were expected to complete tasks and call the triage nurse, for example, was not compensable overtime.

On the other hand, in one case on-call emergency medical technicians in Minnesota who had to report to their ambulances within six minutes of being called were held to be entitled to overtime. EMTs who get more calls in the winter, when there are more weather-related accidents, similarly may be owed wages for their on-call time during those months.

Accordingly, employment conditions that restrict the employee from effectively using the time for personal use will be compensable.

Failure to track and pay for all hours worked can lead to expensive litigation and settlements. Careful review and analysis of these situations with counsel will avoid the risk of costly wage and hour claims.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids.

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