On Call Time and the FLSA

Today’s FLSA Question:

I am a career fire captain who works a 24/48 schedule. Captains in my department are required to be on call and take a command vehicle home on certain days off. We are on call while off duty and must respond to any alarm requiring more than two pieces of apparatus. Calls like box alarms, building fires, and special incidents now require a captain to respond from home while off duty. In addition to his or her nine or ten assigned shifts, fire captains are on call seven or eight days per month. We do not receive any compensation for being on call, but we receive overtime when called back to incidents. Does the Fair Labor Standards Act (FLSA) allow this?

Excellent question. Compensability of on-call time is always a hot topic. Just this past month, Philadelphia police officers received more than $8 million to settle on-call overtime claims.

For more on that see:

Should you get paid for answering phone calls and responding to emails while “off-duty”?

There is no simple yes or no answer to this question. Whether on-call time needs to be compensated requires a thorough examination of the facts.

A key component of this examination is the level of control the employer places over the employee’s time off. If the employee is free to “pursue his or her own personal pursuits,” very often the time will not be compensable. However, if the restrictions placed on the employee prevent the employee from “pursu[ing] his or her own pursuits,” the time could be considered compensable.

Courts and the Department of Labor (DOL) typically look to several factors to determine the level of control the employer is placing over the employee. These factors include:

• Geographical limitations on the employee’s activities while on-call
• Frequency of calls
• Discipline for employees who miss callbacks or report late for a callback
• Ability for employees to trade on-call responsibilities
• Agreement between the employer and employee

If you read this blog regularly, you should already be aware that employees and employers cannot circumvent the FLSA through collective bargaining. While this is always the case, on call time represents a unique provision of the FLSA where the existence of a collectively bargained agreement that incorporates on-call time may be a factor in determining whether the time should be compensable.

It is also very important to consider state and local ordinances that may influence any examination on the compensability of “on-call” time.