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C. Waiting or On-Call Time


Employees who are temporarily idle while waiting for further work in such a way that they are not able to use the time effectively for their own purposes must still be regarded as working, according to 29 C.F.R. 785.15. The DOL's position regarding "on call" time is found in 29 C.F.R. 785.16 and 785.17. In deciding whether time spent "on call" is compensable, DOL and the courts have traditionally used one variation or another of the test of whether an employee is "waiting to be engaged" (non-compensable time) or is "engaged to be waiting" (compensable time) (Skidmore v. Swift, 323 U.S. 134 (1944)).


The Fifth Circuit adopted a fairly strict standard for determining whether on-call time is payable in the 1991 case of Bright v. Houston Northwest Medical Center Survivor, Inc., 934 F.2d 671, cert. denied, 112 S.Ct. 882. This case involved a biomedical (life-support) equipment repair technician who was so indispensable to the employer's operation that he was on call 24 hours a day, 365 days a year. The employee was required at all times to wear a beeper, restrict his alcohol consumption, and be able to come to his workplace within 20 to 30 minutes of being "beeped". After more than eleven months of such duty, the employee separated from employment with the medical center and claimed the employer owed him overtime pay for all the time he spent on call. Noting that Bright admitted he was called in only four or five times each week, was paid for all time spent in responding to the calls, and was able at all non-duty times to conduct his personal affairs, including sleeping or resting at home, going shopping, watching television or movies, and going to restaurants, the Court declined to consider the on-call, off-duty time "hours worked" for overtime pay purposes. The Fifth Circuit ruled that the critical question is "whether the employee can use the on-call time effectively for his or her own purposes". Interestingly, this case is cited with approval in many similar decisions by circuits around the country, even by courts that acknowledge, as the Bright court did, that the on-call policy in question seemed "oppressive"; for example, see Martin v. Ohio Turnpike Commission, 968 F.2d 606, 609 (6th Cir. 1992); Berry v. County of Sonoma, 30 F.3d 1174, 1183 (9th Cir. 1994); and Birdwell v. City of Gadsden, Alabama, 970 F.2d 802, 808, 809 (11th Cir. 1992). DOL cited the Bright case in an opinion letter dated August 12, 1997 (1997 WL 998028 (DOL WAGE-HOUR)).


It is permissible to have a wage agreement whereby employees are paid at a lower rate (at least minimum wage) for compensable on-call time and other types of non-productive work time, as noted in 29 C.F.R. 778.318(b). However, any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time so distinguished must be carefully and exactly recorded. Further, if such work results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay, as provided in wh_part778.html#778_115 (see the topic "Employees Working at Two or More Rates" in the article "Calculating Overtime Pay" in this book). Due to the complexity of the overtime calculation method necessary and the recordkeeping involved, any company attempting this should have the agreement prepared with the assistance of an attorney experienced in this area of the law.


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