FLSA2009-7 * — Ambulance personnel on-call time and hours worked Please see Opinion Letter FLSA2018-1.

U.S. Department of Labor Wage and Hour Division
Washington, D.C. 20210

FLSA2018-1
January 5, 2018
Dear Name*:
This letter responds to your request that the Wage and Hour Division (“WHD”) reissue Opinion
Letter FLSA2009-7. On January 14, 2009, then-Acting WHD Administrator Alexander J.
Passantino signed the opinion letter as an official statement of WHD policy. On March 2, 2009,
however, WHD withdrew the opinion letter “for further consideration” and stated that it would
“provide a further response in the near future.”
We have further analyzed Opinion Letter FLSA2009-7. From today forward, this letter, which is
designated FLSA2018-1 and reproduces below the verbatim text of Opinion Letter FLSA2009-7,
is an official statement of WHD policy and an official ruling for purposes of the Portal-to-Portal
Act, 29 U.S.C. § 259.
I thank you for your inquiry.

Bryan L. Jarrett
Acting Administrator

Dear Name*:
This is in response to your request for an opinion regarding whether “on-call” hours of
ambulance personnel constitute hours worked under the Fair Labor Standards Act (FLSA).
∗
It is
our opinion that the ambulance personnel’s on-call hours are not compensable under the FLSA.
Your client, a county ambulance service, schedules its employees for various hours of on-call
time each week. The county does not have a written on-call policy, but employees understand
that, if called, they should arrive at the ambulance garage within five minutes. The county
ambulance service is located in a small city with a population of approximately 4,000 people and
driving within the city limits “takes only a few minutes.” The county does not discipline

∗
Unless otherwise noted, any statutes, regulations, opinion letters, or other interpretive material cited in this letter
can be found at www.wagehour.dol.gov.

employees who fail to respond within five minutes. Indeed, “[s]ometimes an employee can
respond in less than 5 minutes and at other times, depending on the circumstances, an employee
responds in 6, 7, or 8 minutes.”
The county does not require employees to remain at or around the ambulance garage or at home
during on-call hours, but requires them to carry pagers. The employees must respond wearing
their uniform, consisting of trousers and a shirt with embroidered identification, and must abstain
from alcohol and other substances while on call. Based on a two-month study, the county
ambulance service calls back an on-call employee an average of 12 to 13 times per month – an
average of three times per week. The county ambulance service director stated that ambulance
personnel are typically on duty 30 hours per week (3-4 work days) and on call approximately 40
hours per week (4-5 days), and that call-backs average one hour. For purposes of this response,
we assume that employees are paid for time spent on call-backs pursuant to the FLSA. The
county and the union, who have a collective bargaining agreement, wish to maintain the current
work schedule – “It has been mutually agreed to by the parties and is considered to work well....”
Whether time spent on call is compensable is determined by the particular factual context of each
case. Under 29 C.F.R. §§ 553.221(c) and (d) and 785.17, an on-call employee not required to
remain on the employer’s premises, but required to notify the employer where he or she may be
reached, is not working compensable hours under the FLSA so long as the employee is not
prevented from effectively using the time to engage in personal pursuits. Employees are
considered to be able to use time effectively for their own purposes even when they must carry a
pager and are required to report to work within a reasonable time period, unless the restrictions
are so burdensome and the call-backs so frequent as to prevent the free use of their time. See
Wage and Hour Opinion Letter September 3, 1999 (copy enclosed); see also 29 C.F.R. §
553.221(c) (“Time spent away from the employer’s premises under conditions that are so
circumscribed that they restrict the employee from effectively using the time for personal
pursuits also constitutes compensable hours of work.” 29 C.F.R. § 553.221(d) (“Time spent at
home on call may or may not be compensable depending on whether the restrictions placed on
the employee preclude using the time for personal pursuits.”).
In Andrews v. Town of Skiatook, 123 F.3d 1327 (10th Cir. 1997), the court concluded that on-call
time spent at home or in locations chosen by the employee was not compensable, despite
requirements to remain clean and appropriately attired, refrain from drinking alcohol, and monitor
and respond to pages within a reasonable time. The court set out the requisite response time:
[While] there was not an official policy ... requiring on-call EMTs to respond ... within five
minutes of receiving the page[,] ... there was an established practice ... which required on-call
EMTs to respond to a page ... promptly and that this practice resulted in a practical requirement
that on-call EMTs respond to a page ... within five to ten minutes of receiving the page.
Andrews, 123 F.3d at 1330. The call-backs occurred an average of 16 to 23 percent of the time.
Id. at 1331. The court, noting that “the critical issue in cases of this kind as being whether the
employee can use the [on-call] time effectively for his or her own purposes[,]” stated that “[t]he
five to ten minute requirement gave [the employee] access to all of the small town of Skiatook.”
Id. at 1332 (internal quotation marks omitted).

By contrast, in Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991), cert. dismissed, 503
U.S. 915 (1992), the court concluded that the firefighters’ on-call time was compensable because
they responded to an average of three to five call-backs per on-call shift, and were called back as
many as 13 times in one shift, thereby preventing them from using the time for personal pursuits.
In Andrews, the court stressed that “the number of times [the employee] was called back as
compared to the firefighters in Renfro clearly distinguishes the present case from Renfro....”
123 F.3d at 1331.
Therefore, the number of call-backs where the employee must return to the work premises is
relevant in determining whether the on-call period is compensable under the FLSA. See Wage
and Hour Opinion Letter July 12, 1999 (copy enclosed); Wage and Hour Opinion Letter August
12, 1997 (copy enclosed); Wage and Hour Opinion Letter December 10, 1987 (copy enclosed).
As the Wage and Hour Opinion Letter July 12, 1999 states, “if calls are so frequent or the on-call
time conditions so restrictive that the employee cannot effectively use on-call time for his or her
own purposes, the on-call waiting time would be counted as hours worked.”
Looking at all the facts, is our opinion that the requirements imposed by the county are not so
restrictive as to convert the on-call time into hours worked under the FLSA. Specifically, the
five-minute response time is not a significant hindrance in this particular situation because travel
within city limits here takes only a few minutes and, significantly, the county does not discipline
employees who fail to respond within five minutes – it can take up to eight minutes for
employees to respond. Thus, the ambulance personnel could presumably use their time to travel
anywhere within the city and still be able to timely report to the ambulance garage. Moreover,
the call-backs are so relatively infrequent – averaging three per week – that the employee can
effectively use the on-call time for personal purposes. Accordingly, we conclude that the on-call
periods in this instance are not compensable under the FLSA.
This opinion is based exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided a full and fair
description of all the facts and circumstances that would be pertinent to our consideration of the
question presented. Existence of any other factual or historical background not contained in your
letter might require a conclusion different from the one expressed herein. You have represented
that this opinion is not sought by a party to pending private litigation concerning the issues
addressed herein. You have also represented that this opinion is not sought in connection with
an investigation or litigation between a client or firm and the Wage and Hour Division or the
Department of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,

Alexander J. Passantino
Acting Administrator
*Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. §
552(b)(7).