Must employees be compensated for on-call time (time where the employee is not actually working but must be ready to respond if needed)?

It depends. The Fair Labor Standards Act (FLSA) requires employers to compensate workers for on-call time when the time is spent “predominantly for the employer’s benefit.” Theune v. City of Sheboygan, 67 Wis. 2d 33, 40, 226 N.W.2d 396 (1975). There are no hard and fast rules. Whether on-call time qualifies for compensation is a fact-specific question that varies by case. Skidmore v. Swift, 323 U.S. 134, 136 (1944). An employee who is required to remain on call on the employer’s premises or so close thereto that they cannot use the time effectively for their 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 their home or with company officials regarding where they may be reached is generally not working while on call. 29 CFR § 785.17. However, the Department of Labor notes that “additional constraints on the employee’s freedom could require this time to be compensated.” Department of Labor, Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA).

In determining whether the time is spent predominantly for the employer’s or the employee’s benefit, the key is how restricted the employee’s activities are. No single factor determines the outcome. Instead, the courts look to a variety of factors in determining whether the on-call time is spent predominantly for the employer’s benefit. Some of these factors are: (1) terms of the employment agreement, if any; (2) physical restrictions placed on an employee while on call; (3) maximum period of time allowed by the employer between the time the employee was called and the time he or she reports back to work (response time); (4) percentage of calls expected to be returned by the on-call employee; (5) frequency of actual calls during on-call periods; (6) actual uses of the on-call time by the employee; and (7) disciplinary action, if any taken by the employer against employees who fail to answer calls. Fair Labor Standards Handbook for States, Local Governments and Schools, ¶ 430 (B.L.R).

(rev. 6/22)