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Some employees, including fire fighters and medical care providers, are required as a condition of their employment to be on call during off hours, available to work on short notice. Sometimes they are paid a token wage, other times nothing at all.  Whether the time is compensable for purposes of Federal and Minnesota overtime and minimum wage laws depends on several factors.

Minnesota’s regulation setting forth the test is lifted verbatim from its federal counterpart, with internal case citations removed:

An employee who is required to remain on the employer’s premises or so close to the premises that the employee cannot use the time effectively for the employee’s own purposes is working while on call.  An employee who is not required to remain on or near the employer’s premises, but is merely required to leave word at the employee’s home or with company officials where the employee may be reached is not working while on call.

The question begging formulation developed by courts is whether the employee is being “engaged to wait” versus “waiting to be engaged.”  The easy case is where the employee must remain at employer’s premises.  This time will always, or virtually always be compensable.  At the other extreme are employees free to go wherever they want and do whatever they want, without restriction, but who must remain geographically close enough to get to work on short notice.  Factors frequently cited by courts include (1) whether the employee is required to have on him/her a cellphone or pager, (2) the degree of freedom of movement, (3) whether the employee actually engages in personal activities while on call and (4) frequency of actual calls when on call.  Some courts also consider whether the employee had advance knowledge of an employer’s unpaid on-call policy before starting on the job.  Stone v. City of Kiowa, 950 P.2d 1305, 263 Kan. 502 (Kan. 1997).

State and federal cases involving nurses and other health care workers have upheld unpaid on-call policies that prohibit employees from consuming alcohol or mind-altering drugs and require they be on the job site upon 20 minutes notice.  Despite the fact that such a rule imposes a de facto restriction on movement.   See Rickard v. Hennepin Home Health Care, Inc., No. 15-CV-3224 (JNE/KMM) (D. Minn.  2016).  A review of reported cases, nationwide, suggests that courts uphold employer on-call policies that allow employees freedom of movement a majority of the time.  But there are exceptions, based on “exceptional circumstances.”

Thus, in a case involving fire fighters with a 20 minute response requirement similar to that in Rickard, the court reached the opposite conclusion, based on the high frequency of actual calls.  Renfro v. City of Emporia, Kansas, 948 F.2d 1529 (10th Cir. 1991).  In that case, as many as 13 calls per shift, with an average of four to five.  Another “exceptional” case warranting paid on-call time involved state forest workers, who were required to monitor radio transmissions while on on-call status and have their radios on at all times.  Cross v. Arkansas Forestry Com’n, 938 F.2d 912, 916 (8th Cir. 1991).  Yet another involved husband and wife on-call hotel managers in Cuba, Missouri whose sleep was interrupted by guests on average five times a night because the front desk phone rang in their room.  Stockdall v. TG Invs., Inc., No. 4:14-CV-01557 (ERW) (E.D. Mo. 2015).

Predicting how a court will respond can sometimes seem to be a roll of the dice.  In one case, part-time EMTs who (1) could choose their on-call shifts, (2) were required to wear a pager, (3) had to respond to a station—in full uniform—within five minutes of being called, and (4) were in fact called on approximately 50% of their shifts were found by the court not to be spending their on-call time predominantly for their employer’s benefit.  Consequently, they were not entitled to pay.  Dickhaut v. Madison Cnty., Iowa, 707 F. Supp. 2d 883 (S.D. Iowa 2009).  The cost of getting the answer wrong can be high for employers, including exposure in class action lawsuits over unpaid wages.  Volz v. Provider Plus, Inc., No. 4:15-CV-0256 (TCM) (E.D. Mo. 2015).

In short, an employee’s right to compensation for time spent on-call will depend on the specific facts of the situation.  Employers unsure of whether to pay or not to pay are best advised to get thee to an experienced employment attorney.   Lest they be forced to suffer the slings and arrows of outrageous litigation.

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