FLSA2008-14NA — On-call period and hours worked

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

FLSA2008-14NA

December 18, 2008

Dear Name*:

This is in response to your request for an opinion regarding whether the on-call period
you describe constitutes hours worked under the Fair Labor Standards Act (FLSA).
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It is
our opinion that the on-call period is not compensable under the FLSA.

You state that the on-call employee must be reachable at all times, abstain from alcohol
or other substances, and report to work within one hour of notification. Call-backs are
rare. You ask the following:

1) What restrictions can an employer impose during on-call periods?

2) Is the employer responsible for compensation when restrictions are imposed during
on-call periods?

3) Is the number of call-backs a factor in determining whether the on-call period is
compensable?

Whether time spent on call is compensable is a question of fact decided in the context of
each case. Under
29 C.F.R. § 785.17, an on-call employee who is not required to remain
on the employer’s premises, but is only required to notify the employer where he or she
may be reached is not working while on call. This is true so long as the employee is free
to engage in personal activities when he or she is on call. See Wage and Hour Opinion
Letter September 3, 1999 (copy enclosed). These principles also apply when an
employee must carry a pager and report to work within a specific, reasonable time period.
Id. The on-call time is compensable, however, when the on-call conditions are so
restrictive or the calls so frequent that the employee cannot effectively use that time for
personal purposes. See
29 C.F.R. § 553.221(d).

The federal courts examine a variety of factors when determining whether an employee
can use on-call time effectively for personal purposes, such as whether there are
excessive geographical limitations on an employee’s movements, whether the frequency
of calls received or a fixed time limit for response is unduly restrictive, whether the
employee could easily trade on-call responsibilities, whether use of a pager could ease
restrictions, and whether the on-call policy is based on an agreement between the parties.
See Reimer v. Champion Healthcare Corp., 258 F.3d 720 (8th Cir. 2001); Pabst v. Okla.

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

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Gas & Elec. Co., 228 F.3d 1128 (10th Cir. 2000); Ingram v. County of Bucks, 144 F.3d
265, 268 (3d Cir. 1998); Owens v. Local No. 169, Ass’n of W. Pulp & Paper Workers,
971 F.2d 347, 351 (9th Cir. 1992); Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir.
1991); Cross v. Ark. Forestry Comm’n, 938 F.2d 912, 916 (8th Cir. 1991); Bright v.
Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671 (5th Cir. 1991). This list is
illustrative, not exhaustive, and no one factor is dispositive.

As noted above, the number of calls received while on call is a relevant factor in
determining whether the on-call period is compensable under the FLSA. In Bright, for
example, a hospital required its on-call biomedical equipment repair technician to be
reachable by beeper, remain sober, and arrive at the hospital within approximately 20
minutes after being called. The technician received calls while on call an average of 4-5
times per week. The Fifth Circuit concluded that the employee was able to use the on-
call time “effectively for his own personal purposes” and, as such, the time spent on call
was not compensable. Id. at 677-78. On the other hand, in Renfro the Eleventh Circuit
concluded that on-call time was compensable for firefighters who were required to wear
pagers and respond to callbacks within 20 minutes, and received an average of three to
five calls, and as many as 13 calls, in a 24-hour on-call period.

Based on the information you have given us, it is our opinion that the requirements
imposed by the employer in your case are not so restrictive to convert on-call periods into
hours worked under the FLSA. Moreover, the call-backs are rare. Accordingly, we
conclude that the on-call periods are not compensable under the FLSA. See Wage and
Hour Opinion Letter May 28, 1998; Wage and Hour Opinion Letter June 30, 1994; Wage
and Hour Opinion Letter July 20, 1993 (copies enclosed).

Your letter also states that the employer restricts on-call employees from working
overtime and disciplines employees who refuse to follow its on-call restrictions. While
the FLSA provides many labor standards, it does not generally regulate work schedules
and work assignments. It does not require employers to pay for the inconvenience of
being on call if such periods are not otherwise compensable. Also, disciplinary actions
resulting from an employee’s refusal to be on call is not within the FLSA’s purview.
Such matters are usually resolved privately between employers and employees or their
authorized representatives.

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.

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We trust that this letter is responsive to your inquiry.

Sincerely,

Monty Navarro
Fair Labor Standards Team
Office of Enforcement Policy

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