On-Call Time: To Pay or Not to Pay?

With new technology such as BlackBerries®, cellphones, etc., the practice of requiring employees to be available on call is becoming even more widespread. Now, not only are healthcare and emergency workers required to be on call, but workers in many other industries are also expected to be available 24/7. AT&T workers in California just joined together to bring a class action, filed August 12, 2009 in the Southern District of California, claiming that they should have been paid for being on call 24/7 to handle IT maintenance services for customers’ hardware, software, applications and desktop computers. 

What constitutes “on-call” time that is deemed to be work requiring compensation? The Wage and Hour Division of the Department of Labor issued a letter earlier this year (see) explaining some of the criteria:  

“Under 29 C.F.R. § 785.17, ‘[a]n employee who is required to remain on call 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.” 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.’”  

Some of the key issues to consider in determining whether to pay for on-call time are: 

  • Is the employee required to stay at home or required only to carry a cellphone or other device to receive calls?
  • How close to the work location (whether it be the company office or a customer location) is the employee required to be? In other words, what is the required response time?
  • Are employees on call 24/7, or only certain hours per week or month, and can they switch their on-call time with colleagues if necessary for their personal purposes?
  • Does the “on-call” obligation significantly limit the employee’s use of the time for personal purposes?
  • How frequent are the calls? Are the calls likely to occupy most of the on-call time and will being on call therefore significantly interfere with the employee’s use of the time for personal purposes? Or are the calls only infrequent?
  • Is the employee required to wear a uniform while on call?

Based on these criteria, if it is determined that the on-call time constitutes work, non-exempt employees must be compensated for all of the on-call time in accordance with the standard rates and laws for regular and overtime pay. Additionally, even if the on-call time is not considered to be work requiring compensation, any time in which an employee actually does perform work in responding to a call must be compensated. 

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Comments (35) Read through and enter the discussion with the form at the end
michelle marshall - November 14, 2009 5:18 PM

If the employee is professional exempt status and not compensated for overtime, but is on call 24/7 with a response time of 2 hours and inability to travel, consume alcohol, and carry a cell phone at all times, then how many hours per week can they be required to work as a professional exempt status employee?

Laura L. Himelstein, Esq. - December 2, 2009 2:19 PM

It depends on the state. We suggest that you consult local counsel.

Dustin DeLoach - February 4, 2010 10:40 AM

We have a 24/7 emergency road service here in Atlanta Ga
the way it works is that we have Salesmen, Managers, and dispatchers
are on a 16-18 week cycle. We are responcible for being on call
for 1 week at a time each night starting at 5:30pm -7:30am. Now
I'm a salary employee and do not get any compensation for answering
these road service call. My tire techs get $75 per call but any
management gets nothing...... Should I be entitled to being paid
an hourly wage from 5:30pm -7:30am (14 hours) for being on call
if f get a call I must completely stop my life and or wake at any time
of night and go to my tire store.. We average 1-5 calls per week.
Please respond to my question of should I be paid hourly from
5:30pm-7:30am??

Laura L. Himelstein, Esq. - February 5, 2010 10:55 AM

Certain managers may be deemed to be exempt from overtime requirements and may be compensated solely on a salary basis. If you are manager who is not eligible for overtime pay, then you would not be eligible for "on-call pay" either, because your salary compensates you for all the hours you work. If you are not an exempt manager, then you may be entitled to be paid for at least the time you spend responding to calls under federal law.

Donna Smith - February 8, 2010 7:53 PM

I am an hourly dept. head at a nursing home in a non-essential dept.(activities). I have been told prior to a snow storm to pack a bag and plan to stay overnight "in case there is a power outage" and also to make sure that I am there the next day if enough other personel doesn't come in. I was even told that I would suffer the consequences if I didn't stay and couldn't make it in to work the next day. My question is can they tell me this and do I have to be paid for "on call time"? I had to sleep in my office also because we were told that no hotel rooms would be paid for.

Brian Jackson - April 25, 2010 9:45 PM

My boss has been putting employees on call, meaning that they have to be able to be reached and able to work if called. Should the employees be compensated for being on call, if so how many hours are they required to be compensated and at what rate? I live in Indiana.

Laura L. Himelstein, Esq. - April 27, 2010 11:24 AM

As indicated in the original blog post, there are a number of factors that need to be considered to determine whether on-call time would be considered to be working time. You may want to look at the factors listed and see whether you think they apply. If you are not sure, we suggest that you consult local counsel, who also should be able to provide insights regarding any applicable Indiana law and regulations.

Jim - May 4, 2010 12:46 AM

I work for an in home care agency in Idaho. My agency requires me to be on call 7 days out of every two weeks for the time that the office is closed. (Roughly, from 5pm to 9am the next morning.) The regular phone lines are forwarded to a cell phone that I HAVE to carry with me when the office is closed and I've been told that I have to answer it every time it rings. I've also been told that I can not leave the local area during these times. If I receive a call from a client, I must cover any shifts they require and work. (I am not compensated for covering shifts). If any prospective clients call, I must go meet with them. I am on salary, but it is not calculated to include on call time. With on call time, my salary breaks down to an hourly wage of $5.65 an hour! Shouldn't they be compensating me at least minimum wage for on call hours?

Laura L. Himelstein, Esq. - May 5, 2010 10:09 AM

If you receive a salary, your company may consider you to be an exempt employee who would not be entitled to overtime pay for on-call time or any other kind of work paid on an hourly basis. There are many different reasons why employers consider certain employees to be exempt, and sometimes employers incorrectly classify employees as exempt employees when they are not. If your position were not deemed to be exempt, your employer would be required to pay you on an hourly basis for any time actually worked, whether or not it is during normal working hours, and possibly for on-call time subject to certain criteria as discussed in the original blog. If you believe that your position is improperly classified as exempt from hourly and overtime pay obligations, you may wish to consult with a local attorney.

Don - July 30, 2010 3:37 PM

I work for a company in Minnesota. I am paid by the hour. We are required to be on call every other week. So basically 128 hours every two weeks. We also have to be within 30 minutes from the office and have to respond to all calls within 20 minutes. We get paid for the time worked when responding to a call. We also get paid $1 per hour just for being on call.

Needless to say this places significant restrictions on what I can do with my personal time. I can't plan on doing anything during my week when I'm on call. I can't leave town either. There really should be laws against this kind of employer abuse. They are basically just saving money at the expense of their employees personal life. When I look at all the state and federal laws there really are no restrictions.

Should my employer be required to pay me minimum wage for the on call hours waiting for calls? Also is there any limit to the amount of hours a person can be required to be on call?

Laura L. Himelstein, Esq. - August 2, 2010 4:29 PM

It would be a question of fact about whether your on-call time limits your personal use of the time so much that you should be paid. As indicated in your email below, important facts might include response time and a requirement that you not travel far from the office during your on-call time. Based on consideration of these and other relevant factors, if it is clear that you are significantly limited in using this time for your own personal purposes, it would not be sufficient for you to be paid $1 per hour and you should be paid your regular rate (or overtime if that applies). As these issues are highly dependent on the specific facts, you should consult with a local attorney who can best advise you about how the law might apply in your particular situation.

marcy - March 22, 2011 5:35 PM

Can an employer require an hourly employee to carry an on call phone if that was not part of his duties outlined at the time of hire. And, if so, is it compensable time?

Devora L. Lindeman, Esq. - March 28, 2011 2:18 PM

As long as there are no state laws to the contrary, U.S. employees can generally alter any terms or conditions of an employee's employment on a prospective basis. Whether on-call time is compensable depends on a number of factors relating to the restrictions imposed while "on call" and other issues to consider.

Shawn schemenauer - February 11, 2012 6:56 PM

I am a Director of Nursing and I was recently put on a salaried position. They based my salary on my last 3 years of wages and on call time. My base salary covers me being on call every 5th weekend, but now I am on call 4 days a week, every week Monday thru Thursday. I am required to be within 30 minutes of response time. My question is,is it legal for my employer to not pay me for being on call Monday thru Thursday? Based on what the on call pay is, the difference is about $8000.00 a year. I brought it to their attention and all they told me was that I had to pick up the difference.

Devora L. Lindeman, Esq. - February 14, 2012 4:17 PM

These are always very fact-based determinations. Your state law may also come into play. I can not answer your question based on the information you provided. If your position is properly classified as exempt from the overtime regulations, you would not receive on-call time. If you believe your job is improperly classified, I suggest you contact an employment lawyer familiar with the law of your jurisdiction.

Medhat Barogy - May 7, 2012 5:07 AM

I am a health professional for a big compamy . I work normal hours 8AM-5PM / 5 days a week . in addition ,my job description clearly states i should be a vailable on 24/7 basis to respond to any calls , medical emegency and if needed proceed to company site for patient care .
I am the lone company physician and this causes disturbence to my life .I spent two years working as described without being included on on call roaster orcompensation for any on call time.
can I ask for overtime compensation . Also is it normal for an employee to work on call for 24/7 basis for a whole year period ?? in other wards , is there a ( maximum )for on call days ?? thank you for help .

Devora L. Lindeman, Esq. - May 8, 2012 2:08 PM

Overtime compensation for on-call time is only available to employees who are not exempt from the overtime pay requirements. Physicians are generally not required to be paid overtime compensation, whether it is for on-call hours or otherwise. With regard to your other question, unless the industry is regulated by law, companies can generally require any number of on-call days, as long as the employee is properly compensated. You should always be free, however, to negotiate the terms and conditions of your employment.

anna carr - August 10, 2012 8:32 AM

I work for a propane company. Our company (in Illinois)was just bought out by another company (New Jersey). Previously we had our office staff take turns on a weekly basis for being on call to handle emergency and "all out of gas" calls for residential and industrial accounts. They then dispatch the calls to either a driver or service person to deal with after determining if they owe a balance , can it wait until business hours etc. Now our local manager is stating that the office staff may not get paid to be answerable . I looked up the policy on the new company's website and it states that they do pay on call pay . Can we dispute this?

Devora L. Lindeman, Esq. - August 20, 2012 11:01 AM

Maybe. Many factors go into a determination as to whether "on call" time is working time. It would be best to consult with an employment lawyer familiar with the applicable laws in your jurisdiction.

Jane Rice - September 4, 2012 8:25 PM

I work for Specialty Care Services Group out of Nashville, Tn., but am contracted out through our hospital. I use to get on-call pay but two years ago, one of the VP's with the company decided that I was not going to get on-call pay any longer. He stated the company wasn'tmaking money from the hospitsl!! I work part time and the days I do work, I am on call 24 hours a day and then 24 hours a day over the weekend. I have, since the beginning of this year, have a total of 2,436 on-call hours. Now adding up the money, that is a lot of money I am not getting and it pisses me off. How can Specialty Care Services Group get by with that ? Do they have to pay and can I get back pay for it?

Devora L. Lindeman, Esq. - September 7, 2012 1:25 PM

These are very fact-specific determinations, but it is possible that you should be compensated for the on-call time. If there were supposed to pay you, you would likely receive the back pay owed. It is best to consult with an attorney familiar with this issue and the law of the state where you work who can best advise you.

K. Shade - September 13, 2012 9:31 PM

I work as a salaried informaticist in a healthcare IT department that covers many regions. There is an on call pay policy in place that workers that must be available be paid $2/hr. As my coworkers left, it reached a point where I was the only worker in my region to be on call 24/7. This went on for 9 months- all weekends, all holidays. I was only paid on call pay intermittently, as they wouldn't pay all employees in each region all at the same time. The employees in the other regions rotated the on call responsibilities- I had no one else in my region to provide support, so I was on call and not paid per policy. Do I have any recourse since there is a policy in place? I don't understand how they can get away with saying they can't pay on call pay to all regions, thus paying intermittently. I have figured out I wasn't paid for roughly 4,480 of on call hours. I have taken my concerns up through the chain-of-command, and was told "you've been a trooper" through this 9-month period when no one else was hired on my team. You can imagine my frustration.

Devora L. Lindeman, Esq. - September 19, 2012 10:55 AM

It is unclear from the information about your job whether you would be entitled to on call time as a matter of law. However, I suggest you discuss the situation with an employment lawyer familiar with the law of jurisdiction where you work. These analysis are very fact specific and should be evaluated with all the facts to hand.

john smith - January 16, 2013 8:28 PM

I WORK FOR A COMPANY THAT HAS 50 EMPLOYEES THEY ARE SINGLING ME AND A COUPLE OF OTHER EMPLOYEES TO BE ON CALL IM AN HOURLY EMPLOYEE AND I DONT HAVE A PROFESSIONAL DEGREE AND REQUIRED TO TIME CLOCK IN, IF I WORK ALL DAY 7:00 TO 3:30 I WAKE UP AT 5 AM GO TO BED AT 9 PM HOW CAN I SAFLEY WAKE UP AT MIDNIGHT AND GO TO WORK YOU SHOULD BE ABLE TO GET TO SLEEP TO BE SAFE AND I CANT LEAVE THE AREA IF IM ON CALL THAT SOUNDS LIKE BULL S..T

Devora L. Lindeman, Esq. - January 21, 2013 11:22 AM

What's legal and what's prudent can be two different things. If you are concerned, contact the Department of Labor or an attorney familiar with the wage and hour laws of your state.

John - February 10, 2013 3:19 AM

My employer requires that I be on-call, bi-weekly, for 24hr emergency maintenance. I do not have to remain on site, but must be able to respond within 30min. I work a scheduled 40hr work week set by my employer. If I get called in for an emergency and perform work after normal work hrs on site they make me leave early the next working day to compensate for the time spent after hours on-call. I only receive regular pay for this time and not time and 1/2. Can they do this legally??

Devora L. Lindeman, Esq. - February 14, 2013 10:43 AM

Unless your local law dictates otherwise, employers may adjust your schedule so that you do not work over 40 hours in a week. By doing that, they control their operating budgets and legally avoid paying overtime costs. Generally, time and one-half (overtime wages) only needs to be paid for hours worked over 40 in a workweek (unless you are in a state, like California, with a daily overtime law). If you have any concerns, you can call your local department of labor or an employment lawyer familiar with the laws where you work.

J. K. - April 11, 2013 3:53 AM

For a three week period, I work 12 hours a day, and then I am required to be on-call, for the other 12. I have to monitor a radio, respond to any calls and I am not aloud to leave the premises. Does this constitute a situation where I should be receiving on-call pay?

matt fields - April 16, 2013 1:49 PM

We have two on-call shifts here with Expedia in Hawaii. A morning one and an afternoon one. If it is my day off, but I am supposed to call in at 12:30 for the P.m. on-call shift, should I be paid for that? It basically locks me down from doing anything in the morning.

Devora L. Lindeman, Esq. - April 18, 2013 10:44 AM

JK: This sounds like it could be a situation where you need to be paid, however it is unclear whether this is a live-n in situation and whether you are allowed to sleep for any portion of the time you are on-call. That could make a difference. These are very fact specific determinations and it likely would be best to run it by an employment attorney familiar with the laws in your state.

Devora L. Lindeman, Esq. - April 18, 2013 10:46 AM

Thank you for your question Matt, but it is not clear why you would not be free to engage in other activities during the morning. Do you need to be on-call in a particular place or within a particular range? Even so, it would seem that most of your morning would be free. Whether you should be paid for the on-call shift depends on a number of factors. If you have concerns, it is best to consult an attorney familiar with the law of your jurisdiction as sate-specific considerations may apply.

Tom Roe - May 15, 2013 10:49 AM

I work in IT network support for 19 years as an exempt worker. I have covered 24/7 support alone for my system and responded to calls or went in as needed. Last year the national mediation board decided we are now union employees and use timeclocks. Now we will be paid 2 hours minimum overtime if called and 3 hours min. if we have to go in. What they are planning on doing is assigning 1 person to cover all systems for a week at a time. As before we have to answer the call in 1 hour and sign on to a pc to check the systems if necessary and drive in if needed. Can they force me to be available for the week and if so without paying?

Devora L. Lindeman, Esq. - May 23, 2013 10:23 AM

The “availability” sounds like it was negotiated with your union, and if so, you need to comply with the contract. You don’t say what state you are in so I don’t know if you have a “one day rest in seven” or similar rule. As far as being on call without pay - - that depends if you are “waiting to be engaged” or “engaged to be waiting” - - which I cannot tell from these facts. It is best to run that by a lawyer familiar with the law of your jurisdiction.

Marshall holt mohammadlou - February 14, 2014 5:00 PM

Hi, i work as full time in Oil company. During drilling a well I am in on-call duty every working and weekend day 24/7. My question is about the compensation rate. How the amount of compensation is usually calculated. If my normal salary per month is 6000 USD, how much shoul I eligible to be compensated. Is it differ in compensation value if I be on-call but no call happens with the time that I get call and do work during weekend?

Thanks
Marshal

Devora L. Lindeman, Esq. - February 17, 2014 12:57 PM

Marshall,

Thanks for contacting us, however these situations are fact specific, and may be different depending on the state where you work. We suggest you reach out to an employment lawyer in your state who can answer your questions.

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