Q. Some of our programming staff members, who are classified as nonexempt, must be “on-call” nights and weekends. That means that if we call them on their cell phones or beepers, we expect them to come to work. Is the time spent “on call”—waiting for a potential call—compensable time?
A. It depends. The Fair Labor Standards Act requires employers to compensate workers for on-call time when such time is spent “predominantly for the employer’s benefit.” The U.S. Supreme Court has ruled that determining the compensability of on-call time involves a fact-specific, case-by-case analysis.
While no single factor determines the outcome of such an analysis, certain facts traditionally have influenced the courts in their review of employers’ on-call policies. These include the terms of the employment agreement or policy, the physical restrictions placed on employees while on call and how soon the employees have to report to work after being called. Employees who are free to do as they please while on call, and are allowed plenty of time to get to work, are less likely to be deemed eligible for on-call pay than employees who must remain nearby and ready to report to work.
Other factors include how many calls the on-call employee received, how many he is expected to return, how the employee uses his or her on-call time and whether employees are disciplined if they fail to answer calls.
If you have questions about structuring on-call time, consult with your attorney.