FLSA2008-8NA — On-call time and hours worked

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

FLSA2008-8NA

May 23, 2008

Dear Name*:

This is in response to your request for an opinion regarding the application of the Fair
Labor Standards Act (FLSA) to employees of an ambulance rescue service. You ask
whether the on-call time spent by rescue employees is considered hours worked under
sections 6 and 7 of the FLSA.
∗
We conclude, based on the facts presented, that with
respect to the winter season on-call time is compensable under the FLSA. For non-winter
seasons, however, the on-call time is not compensable.

You state that your non-profit ambulance rescue service responds to emergency calls in
two small communities. The service employs two paid employees and has 23 volunteers
who work without compensation.

According to your letter, the ambulance service operates as follows: The employee
reports to the squad house from 8:00 a.m. to 4:00 p.m. and is paid an hourly wage for this
time. In addition, the employee is on call from 6:00 a.m. to 8:00 a.m. and from 4:00 p.m.
to 6:00 p.m. five days a week without compensation. If an emergency call occurs during
the on-call period, the employee drives his or her vehicle to the squad house, picks up the
ambulance, and responds to the call. The on-call employee must stay within a specific
area and must respond––with the ambulance––to the call within eight minutes. The
employee is paid one and one half times his or her hourly rate for the time spent on the
emergency call. The number of calls to which the employee must respond varies. In the
winter, the calls may occur every day. During the rest of the year, the employee may be
called once or twice a week or, in some weeks, not at all.

In a follow-up telephone conversation, you stated that the on-call employees use pagers
while on call. You also stated that it takes more than eight minutes to drive to the squad
house from some towns within the coverage area; the on-call employee must wear
identifying attire, such as a jacket, when reporting; and that it is unlikely that the two paid
employees could exchange their on-call duties with any of the volunteers. You further
stated that although there are disciplinary penalties for failing to meet the response time,
there is no history of discipline taken against employees who fail to respond within eight
minutes. You inquire whether the on-call time is hours worked when there is no call, and
the employee must stay in the coverage area and respond within eight minutes.

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

Whether hours spent on call are compensable hours of work is a question of fact to be
decided in the context of a given case, based upon a variety of criteria. As explained in
29 C.F.R. § 785.17, “[a]n employee who is required to remain on the employer’s
premises or so close thereto that he cannot use the time effectively for his own purposes
is working while ‘on call.’” Furthermore, “[a]n employee who is not required to remain
on the employer’s premises but is merely required to leave word at his home or with
company officials where he may be reached is not working while on call.” Id. Where an
employee who is on call is free to come and go as he or she pleases and is also able to
engage in personal activities during periods of idleness while subject to call, such time
need not be compensated. See
29 C.F.R. § 553.221(d). These principles also apply
where an employee is required to carry a paging device and to report to work or
otherwise to respond (e.g., telephone in) within a specified period of time. If the calls are
so frequent or the on-call time conditions so restrictive that the employee cannot
effectively use the on-call time for his or her own purposes, the on-call waiting time
would constitute hours worked. See Wage and Hour Opinion Letters May 28, 1998,
August 12, 1997, and April 20, 1994 (copies enclosed).

As the Supreme Court has explained, where the facts demonstrate that an employee has
been hired to spend time waiting to respond to the employer’s needs, the employee is
traditionally described as having been “engaged to wait,” and such time constitutes
compensable hours of work.
Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944). On
the other hand, where the restrictions on the employees’ activities do not prevent them
from pursuing their normal pursuits, such employees are described as “waiting to be
engaged,” and such time is not compensable. Skidmore v. Swift & Co., 323 U.S. 134, 139
(1944). The federal courts evaluate 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 restrictions on an employee’s movements, whether the
frequency of calls is unduly restrictive, whether 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 was based on an
agreement between the parties. See Reimer v. Champion Healthcare Corp., 258 F.3d
720, 724-25 (8th Cir. 2001); Pabst v. Okla. Gas & Elec. Co., 228 F.3d 1128, 1132 (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, 1537 (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, 678 (5th Cir. 1991). This
list is illustrative, not exhaustive, and no one factor is
dispositive.

In applying these factors, the court in Pabst held that the on-call time was compensable
where technicians were required to respond within 10 or 15 minutes to alarms sent to
their pagers or home computers. They often could respond by computer, but other times
had to appear in person. They received three to five alarms per 15-hour shift and could
not easily rotate or trade shifts. 228 F.3d at 1131. In Reimer, the court held that the on-
call time was not compensable where nurses had to be reachable by telephone or beeper,

had 20 minutes to report to the hospital if called in, and typically received not more than
one call per shift. The court found that they could “pursue a virtually unlimited range of
activities in town or at home,” such as playing sports, going shopping, and visiting
friends and neighbors. 258 F.3d at 725.

Based on the situation you describe, it is our opinion that the time spent waiting on call
during the winter season is sufficiently restrictive to make it compensable under the
FLSA. We base this conclusion on the following combination of factors: the extremely
short in-person response time, which precludes the effective use of the on-call time for all
but the narrowest range of personal purposes, all of which must take place within a
restricted geographic area to allow for such a rapid response; the high number of call-ins
(requiring one response every four hours); the apparent impossibility of trading on-call
responsibilities because both employees are on call five days per week; and the inability
to turn down any of the call-ins. Given the very short in-person response time, the
employees’ use of a pager provides only limited relief. It is also our opinion that during
the non-winter seasons, if the frequency of calls is as described in your letter (once or
twice per week, and in some weeks none), the time spent waiting on call would not be
compensable. See Dinges v. Sacred Heart St. Mary’s Hospitals, 164 F.3d 1056, 1058
(7th Cir. 1999) (finding that emergency medical technician were able to use on-call time
effectively for their own purposes where they were subject to a seven minute response
time but received calls on less than 50% of their on-call shifts); Andrews v. Town of
Skiatook, 123 F.3d 1327, 1330-32 (10th Cir. 1997) (finding that emergency medical
technicians were able to use on-call time effectively for their own purposes where
established practice required them to respond and be rolling on a call within 5-10 minutes
but they were only called back on 16-23% of on-call shifts). If, however, the frequency
of calls in the non-winter months were to increase (as you indicated in the follow-up
conversation may have occurred), the employees’ ability to use the on-call time
effectively for their own purposes would need to be reevaluated. Similarly if the
frequency of calls in winter months were to decrease to fewer than, on average, one call
per four-hour shift, the conclusion that the employees are unable to use the on-call time
for their own purposes would need to be reevaluated.

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 issue 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 information is responsive to your inquiry.

Sincerely,

Monty Navarro
Office of Enforcement Policy
Fair Labor Standards Team

Enclosures:
Wage and Hour Opinion Letters May 28, 1998, August 12, 1997, and April 20, 1994

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