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EMS On-Call Pay and the FLSA http://www.jems.com/news_and_articles/articles/when_should_employe...

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Article
When Should Employees Be Paid for
Being On-Call?

The FLSA Clears Up Confusion


Mannie Garza
October 2008 EMS Insider Vol. 35 No. 10
2008 Oct 1

EMS provider agencies -- especially those


in small towns or rural areas -- frequently
assign "on-call" duties, during which times
EMTs and paramedics are generally free to
do as they please, but must wear a pager
Time spent on call but not actively engaged in or other communication device and report
work could be compensable if the amount of for work when notified. When employees
freedom employees are permitted between calls is are asked to remain on call, the question
limited by the employees' required response time, arises whether the time spent on-call
the frequency with which they are called in to counts as "hours worked" (or
work, any geographic limits on their movement or "compensable" time) that must be paid
their ability to trade shifts with other employees. and counted toward overtime entitlements
under applicable law.

Although the basic rules for determining whether on-call time is compensable are easily
understood, they can be difficult to apply, especially in close cases.

Recently, the Wage and Hour Division of the U.S. Department of Labor (the government
agency that enforces federal wage and hour laws) issued an opinion letter regarding the
on-call time of ambulance service employees. This letter provides a useful illustration of the
rules in this area.

'Engaged to wait' or 'waiting to be engaged'


The compensability of on-call time is governed by the federal Fair Labor Standards Act and
may also be governed by the laws of individual states. Under the FLSA, whether time spent on
call is compensable depends on the amount of freedom the employee has while on call. For
example, if on-call employees are required to remain on the employer’s premises or so close to
it that they can’t use the time for their own purposes, such time must be compensated.

On the other hand, if the agency allows on-call employees to go wherever they please as long
as they are easily reachable by the employer and can respond within a reasonable amount of
time, the time would not be compensable. This distinction is sometimes phrased as time spent
"engaged to wait," which is compensable, versus time spent "waiting to be engaged," which
is not .

When deciding whether an employee's freedom while on call is sufficiently restricted to make it
compensable, the DOL commonly considers the following set of factors:

• Are there excessive geographical limits on the employee's movements?

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EMS On-Call Pay and the FLSA http://www.jems.com/news_and_articles/articles/when_should_employe...

• Is the frequency of calls unduly restrictive?

• Is the employee subject to a fixed response time that is unduly restrictive?

• Can the employee easily trade on-call responsibilities with other employees?

• Can the employee use a pager or other communication device to ease restrictions?

• Is the on-call policy based on an agreement between the parties?

As the above factors reflect, determining whether a particular employee's on-call time is
compensable is very fact-sensitive.

The opinion letter


In its May 23, 2008, opinion letter, the DOL considered the case of employees of an
ambulance service that covers two small communities. The employer had two paid employees
plus some 23 unpaid volunteers. The two employees’ regular paid shift went from 8 a.m. to 4
p.m. Additionally, these two employees were required to be on call from 6 to 8 a.m. and from
4 to 6 p.m., but the service did not pay them for these on-call times.

During on-call time, the employees wore pagers. They were also required to remain within a
particular geographic area and, if paged, had to drive their personal vehicles to the
squad-house to pick up an ambulance and respond to the call within eight minutes. However,
the employer stated that no employee had ever been disciplined for failing to respond within
the eight-minute limit.

The frequency of calls varied by season. In the winter, calls were relatively frequent,
averaging approximately one call during every four hours of on-call time. In the summer
months, calls were much less frequent; employees could expect to receive a call about once a
week during on-call times and some weeks would receive no calls at all. These employees had
little opportunity to trade on-call assignments, and they could not turn down calls.

The DOL determined that on-call time for these employees was compensable during the winter
months. The department noted, in particular, that the employees were subject to extremely
strict response times that, combined with the frequency of calls during the winter, effectively
precluded them from all but the narrowest range of personal pursuits. Although they were
permitted the use of pagers, they could not trade shifts or turn down calls. However, with
respect to the summer months, the DOL reached a different conclusion: Although all other
factors remained the same, the department concluded that calls during the summer were
sufficiently infrequent that on-call time was not compensable.

Although this DOL opinion letter doesn't break any new ground, it provides a useful illustration
of the factors an EMS employer should consider when determining whether on-call time must
be treated as compensable under the FLSA.

And so …
Employers who require EMTs and paramedics to work on-call shifts should consider whether
they are properly classifying such time. Factors to consider include the employees' required
response time, the frequency with which they are called in to work, any geographic limits on
their movement and their ability to trade shifts with other employees. Also, many individual
states may have their own wage and hour laws that impact the compensability of on-call time,
so each EMS agency should be familiar with its state's labor laws as well as with federal law.
Employers who think their employees' on-call time might be misclassified or who simply want
an evaluation of whether particular employees' on-call time is compensable under the FLSA or
applicable state laws should turn to their legal counsel for guidance.

Copyright © Elsevier Inc., a division of Reed Elsevier Inc. All rights reserved.

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