Some employers may designate employees for on-call status, requiring them to be available to respond to after-hours service needs or emergencies. A recent Tenth Circuit Court of Appeals decision, which applies to employers in Oklahoma and five other states, offers direction on whether and under what circumstances a company should pay an on-call employee for hours they are not actually performing work.

The on-call technical service engineer

Omnicell is a healthcare technology company that sells and maintains medical control devices, such as cabinets that dispense medication and robots that fill prescriptions. After each sale, Omnicell offers troubleshooting, repair and maintenance services to its customers, the majority of which are hospitals and healthcare facilities.

In his position as a technical service engineer for Omnicell, Larry Barnes was responsible for responding to Omnicell customers’ repair and maintenance requests. Within one hour of receiving such a request, he was required to make initial contact with the customer. For urgent needs, he was required to make an on-site visit within six hours.  Non-urgent problems or situations requiring replacement parts could be scheduled several hours or days after the service request.

Barnes worked remotely and was regularly scheduled to work eight hours a day, five days a week, but he was subject to being “called out” on workdays after hours to respond to service requests he received via text or telephone call. In other words, he was on call when not working his 40-hour workweek. Barnes recorded on his timecard any time he responded to a service request outside his regular hours and was paid for the call-out time he worked.

While on call, Barnes was free to spend his time as he wished, so long as he could respond to cell phone calls within one hour. Nevertheless, Barnes typically chose to sit at his desk until 8:30 or 9:00 pm, after which he went to bed, sleeping with his cell phone next to him. Barnes received no service requests on at least half of the days he was on call.

In the lawsuit he filed against his employer, Barnes sought overtime pay for all the hours he was on call, including the time he was not working or responding to service requests.

Court: Employee not entitled to non-working, on-call time

While on call, Barnes was not required to stay by his desk or sleep next to his cell phone.  So long as he could respond to cell phone calls within an hour, Barnes was free to “engage in personal activities waiting to be called for work.”  In deciding that Barnes was not entitled to be paid for non-working time while he was on call, the court found the following significant:

• While on call, Barnes was not required to remain on Omnicell premises or at a specific location;
• The callbacks were not so frequent and lengthy that they prevented Barnes from using his non-working time for his own purposes; and
• Unless and until he received a service request, there were no limitations on his activities.

Take note: Compensation depends on specific facts and circumstances

Whether or not an on-call employee should be paid for hours they are not actually working depends on the particular facts and circumstances of each case. If you designate employees for on-call status, review the level of independence in movement and activities they exercise when not working. That will determine whether your company should be paying its on-call employees for all the time they are on-call, or only the time they actually perform work.

• Barnes v. Omnicell, Case No. 23-1336 (10th Cir. 5/28/24)