On Call Compensation - Federal Employee stationed in Minnesota

[villebrunj]

I'm scheduled to work 40 hours per week. Depending on the week schedule I am required to be On Call anywhere from 8 to 38 hours per week. I have a department issued cellular phone that I'm required to carry with me 24/7/365 and have been warned that If I am unable to be reached or miss a phone call that disciplinary action may be taken against me. If I am called out I am required to go on duty immediately and respond to the call for service. During the time I am On Call I am restricted from drinking alcohol, going out to dinner, or using that time for actual personal use because I must respond immediately.

I have discussed with my supervisor before about getting paid for this On Call time seeing that nearby departments DO pay their employees for on-call time with the same restrictions I have, but have been denied. I have also requested a written notice or memorandum from my supervisor regarding his decision for refusing to pay for on-call time and have been denied his written response.

My question is: Am I in the wrong and don't deserve to be paid to be on call? I have researched online but only find vague answers. Opinions? Thoughts? anyone??

[DAW]

The federal on call rules are in FLSA regulation 29 CFR 785.17. Under these rules (and about seventy years of court and administrative decisions).
- There is no call pay solely because you have to carry cell phones. Or stay sobor. Or stay in the immeadiate area.
- Under the on call rules, if the employee's time is "sufficently restricted", then it is hours worked. That phrase means whatever the government wants it to mean and over the years, the many decisions have been made including some SCOTUS decisions. These decisions have created a "look at all factors" presumption, meaning you cannot take a single factor and say that the one factor is key. Having said that, time to report to work is generally the big one. If you are not allowed to leave work, the "sufficently restricted" test is meet, and the time spent at work is hours worked. However there is no magic number where a "report to work" time is always hours worked. Court decisions tend to be decided both ways around the 15 minute mark, but beause all courts use the "all factors" rationale specified by SCOTUS, there is some room for one court to argue that a 15 minute report to work time is not time worked, while a different court with slightly different facts can argue that a 20 minute report to work time is hours worked.
- You mentioned "federal employee". What I have said so far are the normal private sector rules. I have no idea if FLSA 29 CFR 785.17 applies to federal employees or not. You could call up federal DOL and ask them.

http://www.dol.gov/whd/regs/compliance/whdfs22.pdf

On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.

[Betty3]

Some info I have -

ON-CALL TIME AND WAITING TIME - FEDERAL EMPLOYEES

Generally, the rules regarding on-call time and waiting time that apply to federal employees are the same as those that apply to private sector and non-federal public sector employees. In some respects, however, OPM's rules concerning on-call time and waiting time are more specific to circumstances that apply to federal employees.

The majority of federal sector work situations in which on-call or waiting time issues arise involve employees who are required to work through a meal period by remaining on-call or compelled to eat at their work site, such as a desk, guard station, etc.


Thus, for purposes of the FLSA, OPM defines "work time" under 5 C.F.R. Section 551.401 as:
(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work." Such time includes:

(1) Time during which an employee is required to be on-duty;

(2) Time during which an employee is suffered or permitted to work; and

(3) Waiting time or idle time which is under the control of an agency and which is for the benefit of an agency.

OPM has set forth a separate regulation for time spent on standby duty or in an on-call status. Under 5 C.F.R. Section 551.431

(a), OPM defines time as being spent on standby duty as:

(1) An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee's activities so substantial that the employee cannot use the time effectively for his or her own purposes.

Interestingly, OPM has defined under Section 551.431

(b) when an employee will be considered to be "off-duty" although the employee is "on-call:"

(1) The employee is allowed to leave a telephone number or to carry an electronic device for purpose of being contacted even though the employee is required to remain within a reasonable call-back radius; or

(2) The employee is allowed to make arrangements such that any work that may arise during the on-call period will be performed by another person.

The case law under the FLSA primarily concerns factual situations in which employees are permitted to go home or to leave word where they may be contacted while on-call.Nonetheless, in these cases, some of the factors that the courts assess to determine whether the standby time is compensable are:

Whether the time is spent on the employer's premises;

Any geographic restrictions on the employees;

The frequency of the calls received during the standby time;

How quickly the employees must respond to the calls;

Whether the employee may use a pager;

The degree to which the employees' personal activities are restricted during the on-call shift.

Any discipline to which the employee is subject if he misses or ignores a call; and

The nature of the employment involved.

No one of these factors is dispositive and this list of factors is illustrative, but not exhaustive.As the courts have repeatedly stressed, all of the facts and circumstances must be examined in each case to determine whether on-call time is compensable.