In many industries, workers are expected to be “on call” for some or all of their work time. During these periods, workers must be ready and able to begin work, usually at a moment’s notice, upon receiving a call or page from their employer or a customer. This practice has become increasingly common with the widespread availability of mobile technology, and employers’ willingness to allow for more flexible work arrangements. These periods of on-call time occupy a gray area between paid work time and a worker’s uncompensated non-working time. This leads many workers to wonder: Should I be paid for the time I spend on call for my employer?
The answer to this increasingly common question is “it depends.” Whether a worker must be paid for on-call time is determined by a number of factors, which must be applied on a case-by-case basis to each individual employment situation. Generally, if a worker is not allowed to control and use the time for her own benefit or enjoyment, then the time will be considered work time, which must be compensated. On the other hand, if the worker has control over how she spends that time, and may use it for her own benefit, then the time will not be counted as payable time.
In applying this general rule, courts have applied the following factors: the frequency of calls received, the expected response time, the length of the time worked when called, any restrictions on how far an employee may travel away from home, and the ability of the employee to switch shifts. Although this multi-factor analysis can be frustrating for both employers and employees who are looking for a bright-line rule for when on-call time is compensable, each individual set of circumstances must be assessed on a case-by-case basis.
Examples from past cases interpreting the Federal Fair Labor Standards Act (the “FLSA”) are instructive. In Renfro v. City of Emporia, the Eleventh Circuit Court of Appeals determined that on-call time for firefighters who were required to wear pagers and respond to calls within 20 minutes, while receiving as many as 13 calls in a 24-hour period, was “work” for the purposes of the FLSA, and therefore required compensation. In Bright v. Houston Nw. Med. Ctr. Survivor, Inc., however, medical equipment technicians who were required to carry a beeper, remain sober, and stay within 20 minutes of their workplace were judged by the Fifth Circuit to be able to use their on-call time “effectively for [their] own personal purposes”. These workers’ on-call time did not therefore require compensation under federal law. The courts in on-call compensation cases like these draw fine distinctions based on the individual facts in each case.
There have been very few analogous court decisions dealing with on-call time under Massachusetts law. The relevant Massachusetts regulation, however, 455 Code Mass. Regs. § 2.03, directly addresses the issue of on-call time. It reads: “An on-call employee who is not required to be at the work site, and who is effectively free to use his or her time for his or her own purpose, is not working while on call.” The few cases and agency determinations that have defined this standard have tracked federal decisions for when a worker is on call, and identified the same determining factors for compensability.
Another common issue for on-call workers is the question of how much they should be paid in the event that they are called in to work while on call. Previously, on-call workers in Massachusetts would be entitled to a minimum of three hours pay when they were called in. That regulation, however, has been rescinded. In the absence of a regulation or binding case law directly on point, it appears that on-call workers are entitled only to be paid for “working time”, which is defined in 455 Code Mass. Regs. § 2.01 as “…all time during which an employee is required to be on the employer’s premises or to be on duty, or to be at the prescribed work site, and any time worked before or beyond the end of the normal shift to complete the work.” Thus, for on-call workers, unless their contract says otherwise, pay is determined only to include time spent working to the employer’s benefit, at their regular hourly rate.
Where does all this leave workers who wonder if their on-call time should be compensated under the law? The first step is an objective determination of whether the on-call time is spent primarily for the benefit of the employer or the employee. This requires careful consideration of the factors discussed above with the facts of your individual case. We have significant experience evaluating these cases and resolving on-call cases under the FLSA. For a free evaluation of your individual case, contact us by phone at (617) 338-9400 or by email to nfo@mass-legal.com.