One area of the Fair Labor Standards Act (“FLSA”) that can confuse employers and employees is the on-call rules. The question is whether the employee is actually working while they are on-call or so restricted from using their time for their own use. The general analysis looks to whether the conditions placed on the employee are restrictive or non-restrictive.
Restricted conditions restricts the employee from effectively using the time for personal use. For example, the FLSA regulations state that if the on-call nurse was burdened with calls from the employer such that the calls prevent free use of time, or the conditions impede the nurse from using the time effectively for personal use, then the on-call time could be considered hours worked and entitled to compensation. 29 C.F.R. § 785.17.
On the other hand, non-restricted conditions permit an employee to use time effectively for their own personal use while on-call. For example, an employee may be required to carry a cell phone and return to the employer’s premises within thirty minutes after being called, but the employee is free to do what he wants to do during that time, e.g. hang out with friends, run errands, sleep, etc. If the employee is able to use the on-call time effectively for their own purposes the on-call time is not considered work time. 29 C.F.R. § 785.17.
One type of restriction that the Courts look at is the restriction on the employee’s movements. The more significant the geographical restriction, the more likely that the Courts will determine that the time must be paid. Another area that the Courts look at is whether the call frequency was unduly restrictive meaning that they were called so frequently that it restricted their ability to use the time for their own use.