On-Call time can be unpaid, even if you set restrictions on travel and activities

When employees are on call, employers obviously want to avoid paying them for that time if they don’t do any actual work. The trick lies in knowing how to design on-call time, lest you wind up paying lots of overtime to employees who have already worked 40 hours in one week.

Under the Fair Labor Standards Act (FLSA), the test of whether you must pay for on-call time is determined by how employees can spend that time. If the hours they spend waiting are predominately for their own benefit, chances are the time isn’t compensable.

That’s true even if you place some restrictions on what employees can do while waiting for a call. You can:

• Instruct on-call employees to refrain from drinking alcohol.
• Make them carry a phone or pager.
• Require them to report to work within a reasonable time.

Essentially, if on-call employees can go about their ordinary lives unrestricted while ready and able to report to work within a reasonable time, you won’t owe them for on-call time.

Recent case: Conroy Nicholas worked for Bright House Networks as a service technician. He was on call 24-hours-a-day for one week per month. During that time, he was required to carry a beeper or cell phone, abstain from alcohol and stay close to home to respond quickly to calls.

When Bright House fired Nicholas, he sued, claiming he should have been paid for every hour he was on call. That would have meant a huge overtime tab. The court dismissed his case. Because Nicholas was relatively free to spend his on-call hours as he wanted rather than for his employer’s benefit, he didn’t meet the FLSA’s test of when on-call hours are compensable. The court said unless an employer severely restricts an on-call employee’s time, it isn’t paid time. (Nicholas v. Bright House Networks, No. 6:05-CV-1865, 2007)

Paying for on-call time: Labor Department’s official word