Today’s Burning Question: I work for a combination department. We have paid staff from 0700 to midnight, supplemented by volunteers. Our chief assigns the paid staff to be on call three times a month from midnight to 0700 time period. We are paid only if there is a call. Would this violate the FLSA since we are not free do what we want during those hours?
Answer: The FLSA, or Fair Labor Standards Act, requires that paid employees (full-time or part-time) be compensated for all hours worked. On-call time is generally not considered to be hours worked unless the restrictions placed upon the employee are so restrictive that the employee cannot engage is his/her our pursuits.
Both Fire Officer’s Legal Handbook and Legal Considerations for Fire and Emergency Services address this topic – and provide a much more detailed discussion of this issue, but the bottom line is: if a fire department imposes so many restrictions on an employee’s “on-call” time that the time ceases to be their own, then the employee must be compensated as if they were working. Some of the factors to be considered are:
- Do the on-call restrictions require an employee to be immediately available (eg. respond to the scene within 10-15 minutes), or merely available within 1-2 hours;
- Is the consequence of not responding merely a missed overtime opportunity or can the employee be disciplined;
- Do the on-call situations occur so frequently that the employee cannot plan to engage in his/her own pursuits (ie. do call outs occur with such frequency that it is impossible to plan personal activities, or do they occur less frequently);
- When an on-call situation occurs, how burdensome is it? (Note: Firefighters who have to respond to an emergency would be on the more burdensome end of the scale compared with, say, an IT person who may merely have to return a phone call, and then can return to his/her normal activities.)
Minor inconveniences (eg. no drinking while on-call) would generally not cause an on-call situation to become so burdensome as to require compensation. The focus is on whether the employee can generally utilize those on-call hours for his/her own benefit. If so, then the employee does not have to be paid for them. If not, the on-call hours are considered to be hours worked and are compensable.
Like many things in the law, at each extreme the outcome is usually clear…. but in between there is an enormous gray area.
PS – in followup to yesterday’s post… I looked through the 2012 cases again at length today and could not find another precedent setting case worth discussing… most disappointing.
