On-Call Time: Must I Pay?

imagesIf an employee is “on-call” away from the worksite, must he be compensated for his time? That’s the question I received on my HR HelpLine from a Massachusetts client. Massachusetts and federal law are the same when addressing on call pay (Readers should check their state laws or contact me).

In this situation, the employee, who was an hourly, non-exempt employee, was on-call, had to be accessible via his cell phone and if called in, had to be able to get to work within 45 minutes. Under the Fair Labor Standards Act, if an employee is not required to be on premise or to remain in close approximation such that he could not do any other activity, then the time “on-call” is not compensable.

But in this specific case, the employee had to remain within 45 minutes of the facility, was he therefore tethered to work? No, as his normal commute to work was less than that time. In addition, while on-call he was allowed to do anything he chose.

If he was either required to remain on site to wait for a call (“waiting to be engaged”), similar to a fire personnel waiting for an alarm, or required to remain at his home waiting for the call there, he would have to be compensated. This was not the case presented. In this case, the employee did not have to be compensated until or unless he was called into work (as it turns out the employer will provide a on-call stipend to incentive the employee).

 The specifics of the law reads: Federal law: § 785.17   On-call time employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))

 If you have an employee or organizational question, contact the HR HelpLine.

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