Once you arrive at your job site and begin working, you are entitled to be paid for your time. But what about time you spend “on call,” waiting to see if there’s work for you to perform? Whether your employer must pay you for on-call time depends, ultimately, on who controls that time. If you are free to use your time for your own pursuits, a court is less likely to find that you should be paid for that time. But if your employer places too many restrictions on you during on-call time, you may be entitled to compensation.
If You Are On Call at Work
Under the federal Fair Labor Standards Act (FLSA), you must be paid for time you spend at the worksite, even if you're not technically working. For example, if you provide customer service by phone, you are entitled to be paid for the time you spend sitting at your desk waiting for calls, even if there are lulls in call volume during the day. If you are required to stay at the workplace while on call, your employer must pay you for that time.
The same is true if your job requires waiting elsewhere during the workday. For example, if you are a messenger, and you have to wait for a client to prepare the package you are picking up, you must be paid for that time. (For more on getting paid for work hours, see Employee Wage and Hour FAQ.)
If You Are On Call Elsewhere
Disputes about getting paid for on-call time typically arise when employees must be on stand-by during their off hours, while away from the worksite. For example, an emergency room nurse might be on call every other weekend, to lend a hand if the ER gets too crowded. In these situations, courts look at all of the facts to determine whether you are free to use your time as you wish. The more restrictions your employer places on your time, the more likely you are entitled to be paid.
If you have to carry a cellphone or pager, but can otherwise go where you wish and do what you want, your employer does not have to pay you for on-call time. On the other hand, if your employer places enough restrictions on you that your time is essentially no longer your own, you are entitled to be paid. In making this determination, courts look at factors like:
- Where you can go while on call. Employees who must stay within a certain mile radius of work while on call are more likely entitled to pay than employees who can go wherever they want.
- What you can do while on call. Some employers prohibit employees from drinking alcohol while on call, for example. Depending on the other limits placed on your time, restrictions like these may make your on-call time compensable.
- How often you are called. If you are contacted frequently when you are on call, your employer is more likely to have to pay for your time.
- What you have to do once you are called. If you have to report in person very quickly after being called, you have a strong argument that you’re not free to do what you want on your on-call time. On the other hand, if you only have to call back within 20 or 30 minutes of being paged, you may not be entitled to pay.
Once You Are Called, You Must Be Paid
The gray areas disappear once you are actually pressed into service. Your employer must pay you for all time you actually spend working. For example, if you are contacted while on call and spend half an hour on the phone helping a client with a computer problem, you must be paid for that time.
An Employment Lawyer Can Help
If you have to work on-call time for which you aren’t being paid, talk to an experienced employment lawyer. Whether you have a right to be paid for this time depends on the particulars of your situation—and on how courts in your area have interpreted the law. To find out whether you have a strong argument that you should be getting paid for your time, consult with an employment law attorney.