Whether hours spent on call are compensable hours of work is a question of fact to be decided in the context of a given case, based upon a variety of criteria.  As explained in the federal regulations (29 CFR 785.17) “an employee who is required to remain 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.  Similarly, “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.”  Where an employee who is on call, whether at home or otherwise, is able to engage in personal activities during periods of idleness while subject to call, such bands of time need not be compensated.

These principles also apply where an employee is required to carry a paging device and to report to work or otherwise to respond (e.g., telephone in) within a specified period of time.  If the calls are so frequent or the on-call time conditions so restrictive that the employee cannot effectively use the on-call time for his own purposes, the on-call waiting time would constitute hours worked.  The frequency of calls seems to be the primary factor.  If, for example, a live-in superintendent who is on call for the evening (e.g. 8PM-8AM) is not called at all on a given night, that band of time will not be deemed compensable.  Similarly, if he is only called once or even twice, the likelihood is that band of on call time is not compensable.

Courts evaluate a variety of factors when determining whether an employee can use on-call time effectively for personal purposes, such as whether there are excessive geographical restrictions on an employee’s movements, whether the frequency of calls is unduly restrictive, whether a fixed time limit for response is unduly restrictive, whether use of a pager could ease restrictions, and whether the on-call policy was based on an agreement between the parties. Where there is such an agreement, that also strongly militates against the band of time being compensable.  

The Takeaway

In sum, the determination of whether on-call time is compensable will depend on the totality of the circumstances.   If the facts show that the employee(s) are largely unfettered except for hours actually worked, then only those hours worked will be compensable.  Factors such as the number of occasions employees are summoned to “active duty” will determine whether the time is compensable working time.  If employees are consistently able to pursue other activities (e.g. watch television, read the newspaper, engage in hobbies, have friends visit, etc.) they will not be considered working during these hours, notwithstanding that they might have to respond within a relatively short time span.

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