We have had a number of recent questions from clients regarding when employees must be paid if they are on standby or on-call duty. Typically, this means that the employee must leave a number where they can be reached and, if contacted, must report to work within a certain period of time. Prior to the days of universal cellphone use, on-call time presented wage and hour challenges for employers. In more recent times, wage payment lawsuits associated with on-call time have diminished.

Under regulations issued under the Fair Labor Standards Act, employers must pay a non-exempt employee for on-call time if he or she “is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes. An 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.”

The U.S. Department of Labor has interpreted this rule to mean if employees are permitted to go about their daily activities, the fact that they are on call does not mean such status is compensable working time. Employees who can be reached through a cellphone are not restricted in terms of their employer’s ability to contact them. If the employer provides 30 minutes or more for the contacted employee to report to work, DOL considers this a reasonable restriction on the employee’s activities.

Of course, on-call duty can be unpopular in that it restricts employees from long-distance travel and requires them to remain in a condition suitable for working. As a result, many employers provide voluntary incentives, such as extra pay for on-call time or, if they are actually called into work, a shift premium or a minimum hours of payment. Employers should also note that some states have laws that require certain payments in the event of on-call duty that differ from the federal FLSA.