The Fair Labor Standards Act requires you to pay your employees for time they actually spend working, whether they’re working on your property, at a client’s property, at home or anywhere else. When evaluating whether wages are owed to your employees, the key inquiry is whether the employee is actually engaging in work.
Some businesses, particularly those in the medical field or other fields where emergencies arise, have employees “on call” for a certain period of time in addition to their actual work day. Under some circumstances, you may need to pay your on-call employees for their on-call time.
When determining whether your employees’ on call time is compensable requires a case-by-case analysis. For example, if your is required to remain on your premises or is unable to use their time for their own purposes, the on call time is likely compensable. Conversely, if you simply require your employee to provide contact information so they can be reached after hours, then on call time is likely not compensable.
While the above situations are fairly simple, most situations actually fall somewhere in the middle, which makes the on call pay issue much murkier. When evaluating the compensability of on call time, a court will primarily consider the amount of control you exercise of the employee while they are on call. A court will review your employee’s ability to use their time, including:
• Is your employee required to remain on the premises?
• If allowed off the premises, are there excessive geographic restrictions on your employee’s movements?
• Is more than merely leaving contact information required?
• How often is your employee actually contacted while on call?
• Is there a fixed time for your employee to respond while on call?
• If there is a fixed time to respond to calls, is the required response time unduly restrictive?
• Can your on-call employee easily trade on-call responsibilities with another employee?
• To what extent is your employee allowed to freely use time while on-call?
In short, a court will try to determine whether, and how much, your employee’s time is restricted during the period in which they are on call. If your employee isn’t permitted to reasonably use their own time as they wish, then you will be required to pay wages and, if applicable, overtime.