Depending on the circumstances, on-call time may or may not be compensable under the Fair Labor Standards Act (“FLSA”). Under both the Federal FLSA and the Minnesota FLSA, time spent on the employer’s premises without complete freedom from all duties is working time that must be counted as time worked for purposes of overtime compensation requirements. See 29 C.F.R. § 785.17; see also Minn. R. § 5200.0120. The regulations state that an 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.” On the other hand, 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.
When analyzing whether on-call time constitutes compensable “hours worked” under the FLSA, courts generally consider a number of factors, including the following:
- Whether the employee is required to remain on the employer’s premises;
- The geographical area to which the employee is restricted while on-call;
- Whether the employee is required to wear a pager;
- The amount of time the employee has to respond to a page and/or call;
- The likelihood of being called into work; and
- The restrictions placed on the employee’s personal activities while on-call.
Takeaway: To avoid legal exposure, employers should carefully consider the above factors to determine whether they are required to compensate their employees for on-call time.