Many employees, including fire fighters, ambulance drivers, medical care providers, IT professionals, building managers and funeral home workers, are required as a condition of their employment to be on call during off hours, available to work on short notice. Whether employees are legally entitled to pay for on-call hours depends on several factors. This article will address common issues and concerns that effect an employee’s right to pay for on-call hours.
What law governs my right to pay while on-call?
An employee’s right to pay for on-call hours is governed by federal and state wage and hour laws. Minnesota’s regulation setting forth the test tracks its federal counterpart: “An employee who is required to remain on the employer’s premises or so close to the premises that the employee cannot use the time effectively for the employee’s own purposes is working while on call.” Minn. R. 5200.0120, subp. 2; 29 C.F.R. § 553.221(d) (2019). An employee who is not required to remain on or near the employer’s premises but is merely required to leave word with company officials where the employee may be reached is normally not working while on call. A special rule applies to employees working in Minnesota as a caretaker, manager or “other on-site employee” of a residential building who receive lodging as part or all of their compensation. For such individuals, “hours worked” do not include time on the premises in which they are on-call and available to perform work duties but aren’t actually doing so. Minn. Stat. § 177.23. See Hagen v. Steven Scott Mgmt., Inc., 947 N.W.2d 847 (Minn. Ct. App. 2020). Naturally, salaried employees exempt from federal and state overtime laws, including professionals, executives, administrative personnel and certain highly compensated non-manual employees are never entitled to pay for on-call time.
To determine whether or not an employee is entitled to pay for on-call time, courts have developed an admittedly question begging test: whether the employee is being “engaged to wait” or “waiting to be engaged.” The easy case is where the employee must remain at employer’s premises. Such time will always be compensable. A Department of Labor fact sheet illustrates as examples a secretary who reads a book while waiting for a dictation assignment and a firefighter who plays checkers while waiting for an alarm. At the other extreme are employees free to go wherever they want and do whatever they want, without restriction, but who must remain geographically close enough to get to work on short notice. Factors frequently cited by courts include (1) whether the employee is required to have on him/her a cellphone or pager, (2) the degree of freedom of movement, (3) whether the employee actually engages in personal activities while on call and (4) frequency of actual calls when on call. Some courts also consider whether the employee had advance knowledge of an employer’s unpaid on-call policy before starting on the job. Stone v. City of Kiowa, 950 P.2d 1305, 263 Kan. 502 (Kan. 1997).
If my employer requires I remain close to work and bars me from drinking, am I entitled to pay?
The answer is, “it depends.” State and federal cases involving nurses and other health care workers have upheld unpaid on-call policies that prohibit employees from consuming alcohol or mind-altering drugs and require they be on the job site upon 20 minutes notice. Despite the fact that such a rule imposes a de facto restriction on movement. See Rickard v. Hennepin Home Health Care, Inc., No. 15-CV-3224 (JNE/KMM) (D. Minn. 2016). See also Hagen v. Steven Scott Mgmt., Inc., 947 N.W.2d 847 (Minn. Ct. App. 2020) (requirement of carrying a cellphone and being within 20-minutes of workplace not compensable); Sletten v. First Care Med. Servs., 2000 WL 1196199, at *11-12 (D. Minn. Mar. 20, 2000) (on-call time paramedics spent staying within five minutes of work site non-compensable because they could still use their time for personal pursuits); Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147, 148 (4th Cir. 1988) (on-call time funeral-home employees spent living in an apartment and required to answer the phone at any hour and pick up corpses if necessary non-compensable). A review of reported cases nationwide suggests that courts uphold employer on-call policies that allow employees freedom of movement a majority of the time. But there are exceptions, based on “exceptional circumstances.”
In a case involving fire fighters with a 20-minute response requirement similar to that in Rickard, the court reached the opposite conclusion based on the high frequency of actual calls. Renfro v. City of Emporia, Kansas, 948 F.2d 1529 (10th Cir. 1991). In that case, as many as 13 calls per shift, with an average of four to five. Another “exceptional” case warranting paid on-call time involved state forest workers, who were required to monitor radio transmissions while on on-call status and have their radios on at all times. Cross v. Arkansas Forestry Com’n, 938 F.2d 912, 916 (8th Cir. 1991). Yet another involved husband and wife on-call hotel managers in Cuba, Missouri whose sleep was interrupted by guests on average five times a night because the front desk phone rang in their room. Stockdall v. TG Invs., Inc., No. 4:14-CV-01557 (ERW) (E.D. Mo. 2015).
Predicting how a court will respond can sometimes seem to be a roll of the dice. In one case, part-time EMTs who (1) could choose their on-call shifts, (2) were required to wear a pager, (3) had to respond to a station—in full uniform—within five minutes of being called, and (4) were in fact called on approximately 50% of their shifts were found by the court not to be spending their on-call time predominantly for their employer’s benefit. Consequently, they were not entitled to pay for on-call time. Dickhaut v. Madison Cnty., Iowa, 707 F. Supp. 2d 883 (S.D. Iowa 2009). The cost of getting the answer wrong can be high for employers, including exposure in class action lawsuits over unpaid wages. Volz v. Provider Plus, Inc., No. 4:15-CV-0256 (TCM) (E.D. Mo. 2015).
Contact Our Minnesota Employment Lawyers
An employee’s right to compensation for time spent on-call will depend on the specific facts of the situation. If you have questions about your entitlement to pay for time spent on-call, contact our experienced employment law attorneys for a free initial consultation.