On-Call vs. OT: Do You Have to Pay Overtime for On-Call Employees?
You never know when an employee will call out sick, you'll be caught off guard by an unexpected rush of customers, or you'll otherwise suffer from a staff shortage. That's why it can help to have some of your workers "on-call," meaning that they're available to come to work at a moment's notice.
Clearly, this means that on-call employees are severely limited in what they can do while they may be called into work, so does that mean you need to compensate them for that time? And, if so, are those hours subject to overtime pay regulations?
Activities and Availability
An Ohio nurse was required to work 48 hours on-call every other weekend, starting at 8 a.m. on Saturday and clocking out at 8 a.m. on Monday. The time was broken down into about 25.4 hours of active work time per week, along with around 22.6 hours of on-call time, during which she could engage in some limited personal activities. While the hospital paid her the normal wage for those on-call hours, it contended that those hours shouldn't count as overtime.
The nurse sued for that overtime pay, and the court agreed. As National Law Review summarized:
Looking over the regulations ... the court reasoned that an employee who is required to remain on-call at home, or who is allowed to leave a message or contact number where he or she can be reached, normally is not considered to be working while on-call. However, this applies only as long as the employee is free to engage in personal activities while on-call. If the on-call conditions are unduly restrictive or the work calls are so frequent that the employee cannot effectively use the on-call time for her own personal reasons, the on-call time would be considered compensable work time. In considering the ability to effectively use personal time, court looked at several factors, including whether there were excessive geographical limitations on the employee's movements and whether the number of calls or response time was unduly restrictive.
Tips and Tricks
In this case, the court ruled the hospital's limitations on the nurse's activities were unduly restrictive, and ordered it to compensate her for unpaid overtime. So how do you avoid the same outcome? A couple tips:
- Examine whether the employees have sufficient time to engage in personal pursuits while they are on-call -- if not, that time should be paid, and counted towards overtime.
- Fully document the reasoning behind any decision to classify employees as exempt from on-call pay, as they can come back to bite you later.
And if you need help figuring it all out, talk to an experienced employment law attorney.
- Find Employment Lawyers Near You (FindLaw's Lawyer Directory)
- Wage Theft Lawsuits on the Rise: 5 Tips for Business Owners (FindLaw's Free Enterprise)
- Top Overtime Rules for Small Business Employers (FindLaw's Free Enterprise)
- 3 Things to Know About On-Call Scheduling (FindLaw's Free Enterprise)
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