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On-Call Time Not Compensable if Employee Not Restricted

    Client Alerts
  • June 07, 2024

In the days before cellphones, employees required to remain on-call for work were generally entitled to compensation for time spent at home waiting for the landline to ring. Given the ubiquity of mobile communication technology, the legal analysis for determining pay for on-call waiting time has shifted. As demonstrated by a new decision from the Tenth Circuit Court of Appeals — absent unusual restrictions imposed on the employee — on-call time will not be considered compensable working time.

In Barnes v. Omnicell, the plaintiff was a service technician who worked from home. He was required to report to work within one hour of receiving a service call. He sued the employer, claiming that in essence he was on duty 24 hours a day, and therefore was due overtime pay for this permanent work status. After the district court dismissed his claims, the plaintiff appealed to the Tenth Circuit.

The appellate court had little trouble disposing of the appeal. The court noted that the calls for service were not overly restrictive, and that the plaintiff had the ability to engage in personal pursuits while on-call. Under the Fair Labor Standards Act, the question of compensability of waiting time depends on an analysis of the working arrangement, and how it restricts the employee’s non-working time. Given the ability to contact employees through cellphone calls or text messages, absent a requirement that the worker immediately report after receiving a call, most on-call working arrangements should not result in compensability for waiting time.

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