FLSA: How to make sense of on-call and waiting time

Dan Wisniewski
by Dan Wisniewski
3 minute read

You may know the in’s and out’s of more common Fair Labor Standards Act (FLSA) trouble spots, but what about some of these lesser-known areas?
Here’s a rundown on two sections of the FLSA that every HR pro with non-exempt staffers should know about: on-call time and waiting time.

On-call time

Some employees are required to be on-call, and technology has made it easier than ever for companies to get in touch with staffers.
Those staffers, however, may or may not be on company time when they’re on-call.
There are few hard-and-fast rules — and lots of gray areas — when it comes to compensating employees on-call.
These situations, when contested by workers, are almost always settled on a case-by-case basis.
Here are six tips that employers should keep in mind when determining whether or not on-call workers must be compensated:

  • Strict geographic limitations. Generally, if the on-call requires people to stay in a close geographic proximity, then it’s compensable. There’s no one answer regarding how close employers can ask employees to stay to the work site. But requiring them to stay within a five-minute drive would almost always require they be paid for that time.
  • Restrictions on movement. When an employee is required to stay in the same place – whether it’s a work site or at home – most rulings have come down in favor of paying the employee.
  • Quick-response requirements. Then there’s the consideration of how much time a company gives an employee to respond to a call from work. Again, there’s no one hard-and-fast rule. But courts have generally decided that requiring employees to call back within 30 minutes is not overly restrictive. Anything less than that might be.
  • Uniform requirements. If employees have to wear uniforms, that’s a sign that personal use of their on-call time is greatly restricted and they should be paid for that time.
  • Frequency of calls. The more calls employees get, the more likely it is they’re considered “on duty” and need to be paid. For example, the DOL has stated that EMTs who get more calls in the winter, when there are more weather-related accidents, may be owed wages for their on-call time during those months. But that is not always the case during times of the year when emergency calls are less frequent.
  • Prohibiting employees from switching shifts. The more freedom employees have, the more likely it is they are not required to be paid.

The best way employers can determine if on-call time is compensable is to ask: If employees aren’t called, can they use the time as they see fit?
If the answer is yes, if employees are generally free to come and go on their on-call time, then they are not considered to be on duty and only need to be paid for the time actually spent working.

Waiting time

Sometimes employees find themselves on the job but not doing any actual work – what the DOL defines as “waiting.”
Examples include a stenographer reading a book while waiting for a dictation session, a carpenter waiting for lumber to be delivered to a job site, or a firefighter playing cards while waiting for an alarm.
Must these employees be paid?
Yes. The FLSA refers to this as time that employees are “engaged to wait” because it is controlled by the employer.
The opposite is the employee who is “waiting to be engaged” – in other words, can use the time however he or she sees fit. In this instance, people do not have to be paid.