| On call time is a major issue under the Fair Labor Standards Act. More and more employers are requiring their employees to be on call. In a tight labor market, with wage rates getting ever higher in some industries, it is far cheaper for an employer to have its employees be on call than to hire additional employees to cover on call periods. At least, it is cheaper if the employer is only required to pay on call employees who are actually called to duty. Some of the fields where on call time is most prevalent are health care, utilities, public safety and information technology. For management and professional employees who are exempt under the FLSA, the employer is not obligated to pay anything for the on call time, even when the employees are called to report to duty. Of course, many employers do pay some premium to on call employees. The situation is different for non-exempt employees who are on call. Clearly, the employer must pay for the time that the employee is called to duty--but, the employer might also have to pay for the entire on call period if the time is so restricted that the employee cannot pursue his normal activities. |
| For Kansas employees, most FLSA cases are litigated in the Kansas federal district court with appeals taken to the Tenth Circuit Court of Appeals in Denver. Both courts are bound to follow the decisions of the United States Supreme Court on matters involving the federal Fair Labor Standards Act. The Supreme Court long ago distinguished between employees waiting to be engaged (who are not entitled to be paid) and those who are engaged to wait (who are entitled to be paid for the waiting or on call time). The following is an excerpt from one of the leading Tenth Circuit cases concerning on call time. Use this link to read the entire case. "With certain exceptions not relevant here, the FLSA requires an employer to pay a minimum wage for each hour it "employ[s]" an employee, as well as an overtime premium for hours in excess of forty per week. See 29 U.S.C. §§ 206, 207, 213. "Employ" is defined as including "to suffer or permit to work." § 203(g). The pertinent question, and one with which courts have struggled, is whether on-call time is "work" for purposes of the statute. The FLSA does not explicitly address the issue of on-call time.(1) Courts, however, have developed a jurisprudence of on-call time, based on the Supreme Court cases of Armour & Co. v. Wantock, 323 U.S. 126 (1944), and Skidmore v. Swift & Co., 323 U.S. 134 (1944). Those cases determine the relevant inquiry to be whether an employee is "engaged to wait" or "wait[ing] to be engaged," Skidmore, 323 U.S. at 137, or, alternatively, whether on-call time is spent predominantly for the benefit of the employer or the employee, see Armour, 323 U.S. at 133. Necessarily, the inquiry is highly individualized and fact-based, see Skidmore, 323 U.S. at 136-37; Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 654 (10th Cir. 1988), and "requires consideration of the agreement between the parties, the nature and extent of the restrictions, the relationship between the services rendered and the on-call time, and all surrounding circumstances," Boehm v. Kansas City Power & Light Co., 868 F.2d 1182, 1185 (10th Cir. 1989). We also focus on the degree to which the burden on the employee interferes with his or her personal pursuits. See Armitage, 982 F.2d at 432. Several facts are relevant in assessing that burden: number of calls, required response time, and ability to engage in personal pursuits while on call." |
| Kansas Wage and Overtime Lawyer in Johnson County, Kansas |
| MORE ABOUT ON CALL TIME |
CHECK LIST FOR DETERMINING IF ON CALL TIME IS COMPENSABLE
(1) Terms of any employment agreement;
(2) Geographical restrictions placed on an on-call employee;
(3) Reporting time for responding to work after receiving a call to duty;
(4) Percentage of calls expected to be responded to by on-call employees;
(5) Frequency of actual calls during on-call periods;
(6) Actual uses of on-call time by an employee; and
(7) What disciplinary action, if any, is taken for failure to respond to any or a
certain percentage of calls.
When an employee is the only on call employee and is required to take all calls to
report to work, it is far more likely that the on call time will be considered work
time and will be compensable under the FLSA. However, the fact that an
employer pays some premium when employees are on call does not mean that the
time is automatically work time. For example, an employer might pay $50 for
each on call period, but this alone will not cause the court to find that the time is
work time since employers are free to pay additional money to employees even
when the FLSA does not require it to do so. Click here for the Department of
Labor Advisor for on call time.
(1) Terms of any employment agreement;
(2) Geographical restrictions placed on an on-call employee;
(3) Reporting time for responding to work after receiving a call to duty;
(4) Percentage of calls expected to be responded to by on-call employees;
(5) Frequency of actual calls during on-call periods;
(6) Actual uses of on-call time by an employee; and
(7) What disciplinary action, if any, is taken for failure to respond to any or a
certain percentage of calls.
When an employee is the only on call employee and is required to take all calls to
report to work, it is far more likely that the on call time will be considered work
time and will be compensable under the FLSA. However, the fact that an
employer pays some premium when employees are on call does not mean that the
time is automatically work time. For example, an employer might pay $50 for
each on call period, but this alone will not cause the court to find that the time is
work time since employers are free to pay additional money to employees even
when the FLSA does not require it to do so. Click here for the Department of
Labor Advisor for on call time.
| THE COURTS AND ON CALL TIME |
| MICHAEL M. SHULTZ Antioch and Santa Fe Overland Park, Kansas 66212 913-825-0064 and 901 Kentucky, Suite 305 Lawrence, Kansas 66044 785-838-4300 email Mike |
| MICHAEL M. SHULTZ Kansas Employment Attorney 785-838-4300 Lawrence 913-825-0064 Overland Park |