Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
As a front-line supervisor, I am required to carry a pager and be on call 24 hours a day, 7 days a week. Should I be compensated for being on call? There are repercussions if I do not answer the pager within 30 minutes any time of any day.
A:
Under the facts you provide, no. The Fair Labor Standards Act requires federal agencies to compensate employees for performing activities which constitute work for the benefit of an agency, under the control or direction of the agency. Although many people use the terms “standby” and “on-call” interchangeably, the Office of Personnel Management, which is responsible for administering FLSA for most federal employees, draws a distinction between the two. Time spent on standby duty is compensable; time in an on-call status is not.
As defined in 5 C.F.R § 550.112(k), standby duty is, generally, where an employee is restricted to a designated post of duty with substantial limitations on the employee’s activities and assigned to be in a state of readiness to perform work. On-call status, as defined in 5 C.F.R. § 550.112(l) and 5 C.F.R. § 551.431(b), is where an employee is generally free to engage in personal activity while still being required to engage in work activity upon contact from the agency. Since 1980, the OPM regulation for time spent in an on-call status, 5 C.F.R. § 551.431(b), has stated that:
An employee will be considered off duty and time spent in an on-call status shall not be considered hours of work if: 1) the employee is allowed to leave a telephone number or to carry an electronic device for the purpose of being contacted, even though the employee is required to remain within a reasonable call-back radius; or 2) the employee is allowed to make arrangements such that any work which may arise during the on-call period will be performed by another person.
In 1983, the Claims Court, now the Court of Federal Claims, in Allen v. United States, 1 Cl.Ct. 649 (1983), aff’d 723 F.2d 69 (Fed. Cir. 1983) found that time spent in an on-call status was not compensable where the employee was allowed to leave a telephone number or carry a pager and remain within a reasonable call-back radius.
In 2000, OPM, in Decision No. F-0681-04-01, denied a claim for compensation of a group of Army dental assistants who were on-call for seven days, 4:30 p.m. through 7:30 a.m., because they were free to leave their places of work, and were only required to be reachable by telephone or pager and remain within 30-45 minute driving time to their places of work.
In light of the above, without further information from you, the time you are required to respond to your pager within 30 minutes, while not at your place of work, appears to be spent in a non-compensable on-call status.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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2 Comments
I work at a VA hospital. I am required to take 24 hour call, 7a-7a on weekends. The call backs are so numerous that I basically have no personal time nor time to sleep. This is the rule, not the exception.
I travel 40 minutes back to the hospital for emergency CAT scans. Can you also tell me if my call time starts when I am called, since once called I must respond and my driving time is in respond to the call back?
I was told that my 2Hour pay is just that. I f I return within the 2 hours I don’t get paid. I have read in the VA handbook that I should receive 2 hours pay everytime I’m called regardless of whether it is within the 2 hours.
Can I ask a follow on question?
The situation is similar to the above on call question. The employee has to have a BlackBerry and be contactable 24hrs/day on days off. Rotations will be alternating weekend during a six week rotation. Call outs will probably be minimal, but on call periods will be frequent. The employee has a response time of 2 hours. The employee can trade days on with another qualified employee, but no other employees are responsible to take a shift. So if the employee gets sick and cannot find another employee to take his shift it has been explained to me the original employee is liable for discipline for not finding someone to cover his/her shift or they have to work sick.
The employee has a responsibility to remain able to legally fly an aircraft, which means no alcohol, no non-FAA prescriptions and rested. Annual Leave can be cancelled for on call duty if operational requirements mandate a change in on call crew. That means, if you have planned to go on holiday during the weekend, management can restrict you from leaving to make you stay on call.
Management states a failure to respond to a call out for any reason is a discipline event.
Is this still ok?