When an on-call employee is on the clock: “engaged to wait” versus “waiting to be engaged”
29 C.F.R. 785.16 provides insight as to how personal time is treated when considering compensable work time. The regulation states that “periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked.” Each determination requires a case-by-case evaluation based upon the specific facts and circumstances of each case.
Even though an employee may be relieved of work duties on the premises, they may still be working due to being “on-call”. 29 C.F.R. 785.17 provides that an employee that cannot use their time away from the employer’s premises for their own purposes is working while “on-call”.
The Supreme Court first approached the issue of compensable periods of work time that were “off-duty” in Skidmore v. Swift & Co., 323 U.S. 134 (1944). The Court ruled that there is no defined line to be drawn between waiting to be engaged and engaged to be waiting, rather, the factual circumstances of each case should be considered. The Court continued to explain its reasoning covering the exceptions to the FLSA wage payment provisions in Armour & Co. v. Wantock, 323 U.S. 126 (1944). The Court decided on whether fireguards who had on-call shifts directly following active shifts should be compensated for the on-call hours worked. The fireguards, who were on-call, were not permitted to leave the premises but their total amount of work usually averaged thirty minutes a week, for these reasons the Court held that it was not error to find that the employees were covered by the FLSA as active employees.
In applying the Supreme Court’s reasoning, the Court in Pilkenton v. Appalachian Regional Hospitals, Inc., 336 F.Supp. 334 (W.D. Va. 1971) decided if Plaintiffs who were expected by their employer to be within 20 minutes of the work premises and reachable by phone call crossed over to employees who were engaged to wait. The Court draws the general rule from the Supreme Court’s holding in Armour and Swift that it “is not whether an employee’s leisure is curtailed at all, but rather whether it is so restricted that it is not spent primarily for the employee’s benefit.” Pilkenton, 336 F.Supp. at 338. In applying the Supreme Court’s rule, the plaintiffs’ time was spent primarily for their own benefit rather than that of the employer due to the general freedom afforded, and therefore the time spent not on a call would not be compensable.
In Halferty v. Pulse Drug Co., 864 F.2d 1185 (5th Cir. 1989), Halferty was a non-emergency ambulance care-giver, which meant that Halferty was responsible for answering a small number of calls each night during which she worked (5 P.M. to 8 A.M.). Pulse paid Halferty $2.50 per night plus an extra $1.00 per ambulance run, but this was eventually raised to a flat rate of $230.00 per month. Halferty successfully filed suit for back wages in the United States district court. Upon appeal, the decision was remanded to see if the “waiting to be engaged” or “homeworker” exception to the minimum/overtime requirements of the FLSA would apply. Upon appeal from the district court following its application of the exceptions, the appeals court held the district court erred in applying the exceptions. The “waiting to be engaged” exception relies on the premise that when the employee’s idle time is predominately for the benefit of the employer, then the time is compensable.
In Largent v. E. Ala. Water, Sewer, & Fire Prot. Dist., 330 F.Supp.2d 1252 (M.D. Ala. 2004), plaintiffs alleged that they are required to be on call for twenty-four hour shifts following any twenty-four hour active shifts. The policy of the fire-station is to require on-call fire-fighters to respond (reporting to the station-house) to a dispatch call within 15 minutes. The decision as to whether the plaintiffs here had their personal time (while on-call) so interfered with as to constitute compensable time under the FLSA depended upon “the degree to which the employees may use the time for personal activities.” Largent, 330 F.Supp.2d at 1261 (quoting Birdwell v. City of Gadsden, Ala., 970 F.2d 802, 807 (11th Cir. 1992)). This Court elaborated on the standard elucidated by the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134 (1994) and utilized by the eleventh circuit in Birdwell, in that the degree of interference upon personal time (being “engaged to wait”) is a question of law to be determined based upon “the agreements between the particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the surrounding circumstances.” Though the plaintiffs presented twelve factors to consider in determining if on-call time is compensable,[1] the Court focused on two in particular, “the degree to which the employee is free to engage in personal activities and the agreements between the parties.”
Utilizing the same standard of evaluating the interference with personal time, the Fourth Circuit in Whitten v. City of Easley, 62 Fed.Appx. 477 (4th Cir. 2003) (unpublished), ruled on whether the plaintiffs were properly compensated from 1998 to 2001. The Court here applied four factors to come to a conclusion on interference with personal time, including whether the employee may carry a deeper, or leave their home; the frequency of calls and nature of demands; the employees ability to maintain a flexible on-call schedule and trade shifts; and whether the employee actively engaged in personal activities during the on-call times. The firefighters here were considered to be waiting to be engaged due to the fact that there was minimal impact if any on the employees’ personal/private life.
When considering the standard as applied to an individual who lives at the same location in which she works, the Fourth Circuit in Kelly v. Hines-Rinaldi Funeral Home, Inc., 847 F.2d 147 (4th Cir. 1988), held that interruptions to the employee’s personal time were infrequent, and therefore he was waiting to be engaged. Kelly lived above his employer’s funeral home and in exchange for this living arrangement Kelly was to remain on the premises from midnight until 6:30 A.M. and answer any phone calls or retrieve a corpse if needed. The frequency of these interruptions was low and averaged close to 3.5 calls a month. The Court reasoned that because Kelly lived on the premises and the interruptions were infrequent, there was little impact on how he chose to use his personal time; therefore, he was merely waiting to be engaged.
Though various factors have been considered by different federal courts, the two primary factors that consistently appear include the degree of personal autonomy when on-call and the existence of any existing agreements between the parties.
[1] The twelve factors Plaintiffs enumerate are as follows: (1) whether the time is spent predominantly for the employer’s benefit or for the employee’s benefit; (2) whether the employees are engaged to wait for the employer’s call to duty; (3) whether there are excessive geographical restrictions on the employees’ movements while on call; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the employee could easily trade on call responsibilities; (6) whether there is an on premises living requirement; (7) whether the call frequency was unduly restrictive; (8) whether the use of a pager could ease restrictions; (9) whether the employees had actually engaged in personal activities while on call; (10) whether the response is mandatory; (11) the nature of the employment and its relationship to waiting time; and (12) all the surrounding circumstances. Largent, 330 F.Supp.2d at 1261-62.
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