On call time is a major issue under the
Fair Labor Standards Act. More and more
employers are requiring their employees to be on
call. In a tight labor market, with wage rates
getting ever higher in some industries, it is far
cheaper for an employer to have its employees be
on call than to hire additional employees to cover
on call periods. At least, it is cheaper if the
employer is only required to pay on call
employees who are actually called to duty. Some
of the fields where on call time is most prevalent
are health care, utilities, public safety and
information technology. For management and
professional employees who are exempt under the
FLSA, the employer is not obligated to pay
anything for the on call time, even when the
employees are called to report to duty. Of
course, many employers do pay some premium
to on call employees.
The situation is different for non-exempt
employees who are on call. Clearly, the
employer must pay for the time that the employee
is called to duty--but, the employer might also
have to pay for the entire on call period if the
time is so restricted that the employee cannot
pursue his normal activities.
Fair Labor Standards Act. More and more
employers are requiring their employees to be on
call. In a tight labor market, with wage rates
getting ever higher in some industries, it is far
cheaper for an employer to have its employees be
on call than to hire additional employees to cover
on call periods. At least, it is cheaper if the
employer is only required to pay on call
employees who are actually called to duty. Some
of the fields where on call time is most prevalent
are health care, utilities, public safety and
information technology. For management and
professional employees who are exempt under the
FLSA, the employer is not obligated to pay
anything for the on call time, even when the
employees are called to report to duty. Of
course, many employers do pay some premium
to on call employees.
The situation is different for non-exempt
employees who are on call. Clearly, the
employer must pay for the time that the employee
is called to duty--but, the employer might also
have to pay for the entire on call period if the
time is so restricted that the employee cannot
pursue his normal activities.
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
For Kansas employees, most FLSA cases are litigated in the Kansas federal
district court with appeals taken to the Tenth Circuit Court of Appeals in
Denver. Both courts are bound to follow the decisions of the United States
Supreme Court on matters involving the federal Fair Labor Standards Act. The
Supreme Court long ago distinguished between employees waiting to be engaged
(who are not entitled to be paid) and those who are engaged to wait (who are
entitled to be paid for the waiting or on call time). The following is an excerpt
from one of the leading Tenth Circuit cases concerning on call time. Use this
link to read the entire case.
"With certain exceptions not relevant here, the FLSA requires an employer to
pay a minimum wage for each hour it "employ[s]" an employee, as well as an
overtime premium for hours in excess of forty per week. See 29 U.S.C. §§ 206,
207, 213. "Employ" is defined as including "to suffer or permit to work." §
203(g). The pertinent question, and one with which courts have struggled, is
whether on-call time is "work" for purposes of the statute. The FLSA does not
explicitly address the issue of on-call time.(1) Courts, however, have developed
a jurisprudence of on-call time, based on the Supreme Court cases of Armour &
Co. v. Wantock, 323 U.S. 126 (1944), and Skidmore v. Swift & Co., 323 U.S. 134
(1944). Those cases determine the relevant inquiry to be whether an employee is
"engaged to wait" or "wait[ing] to be engaged," Skidmore, 323 U.S. at 137, or,
alternatively, whether on-call time is spent predominantly for the benefit of the
employer or the employee, see Armour, 323 U.S. at 133. Necessarily, the
inquiry is highly individualized and fact-based, see Skidmore, 323 U.S. at 136-37;
Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 654 (10th Cir. 1988), and
"requires consideration of the agreement between the parties, the nature and
extent of the restrictions, the relationship between the services rendered and the
on-call time, and all surrounding circumstances," Boehm v. Kansas City Power
& Light Co., 868 F.2d 1182, 1185 (10th Cir. 1989). We also focus on the degree
to which the burden on the employee interferes with his or her personal pursuits.
See Armitage, 982 F.2d at 432. Several facts are relevant in assessing that
burden: number of calls, required response time, and ability to engage in
personal pursuits while on call."
district court with appeals taken to the Tenth Circuit Court of Appeals in
Denver. Both courts are bound to follow the decisions of the United States
Supreme Court on matters involving the federal Fair Labor Standards Act. The
Supreme Court long ago distinguished between employees waiting to be engaged
(who are not entitled to be paid) and those who are engaged to wait (who are
entitled to be paid for the waiting or on call time). The following is an excerpt
from one of the leading Tenth Circuit cases concerning on call time. Use this
link to read the entire case.
"With certain exceptions not relevant here, the FLSA requires an employer to
pay a minimum wage for each hour it "employ[s]" an employee, as well as an
overtime premium for hours in excess of forty per week. See 29 U.S.C. §§ 206,
207, 213. "Employ" is defined as including "to suffer or permit to work." §
203(g). The pertinent question, and one with which courts have struggled, is
whether on-call time is "work" for purposes of the statute. The FLSA does not
explicitly address the issue of on-call time.(1) Courts, however, have developed
a jurisprudence of on-call time, based on the Supreme Court cases of Armour &
Co. v. Wantock, 323 U.S. 126 (1944), and Skidmore v. Swift & Co., 323 U.S. 134
(1944). Those cases determine the relevant inquiry to be whether an employee is
"engaged to wait" or "wait[ing] to be engaged," Skidmore, 323 U.S. at 137, or,
alternatively, whether on-call time is spent predominantly for the benefit of the
employer or the employee, see Armour, 323 U.S. at 133. Necessarily, the
inquiry is highly individualized and fact-based, see Skidmore, 323 U.S. at 136-37;
Norton v. Worthen Van Serv., Inc., 839 F.2d 653, 654 (10th Cir. 1988), and
"requires consideration of the agreement between the parties, the nature and
extent of the restrictions, the relationship between the services rendered and the
on-call time, and all surrounding circumstances," Boehm v. Kansas City Power
& Light Co., 868 F.2d 1182, 1185 (10th Cir. 1989). We also focus on the degree
to which the burden on the employee interferes with his or her personal pursuits.
See Armitage, 982 F.2d at 432. Several facts are relevant in assessing that
burden: number of calls, required response time, and ability to engage in
personal pursuits while on call."
| Kansas employment attorneys representing Kansas employees in wage and hour disputes, back pay, minimum wage, overtime and other salary disputes. Working with clients throughout Kansas, including Wichita, Topeka, Kansas City, Kansas, Lawrence, Johnson County, Sedgwick County, Shawnee County and Douglas County. |
Kansas Wage and Overtime Lawyer in Johnson County, Kansas
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
| |
|
This website was created
by Michael Shultz, a
lawyer in Johnson
County and Douglas
County, Kansas, who
practices wage and hour
law. You may learn
more about him by
clicking on the Contact
Us button on the left.
Mike has worked with
dozens of clients
throughout the Kansas
City area and the state of
Kansas.
by Michael Shultz, a
lawyer in Johnson
County and Douglas
County, Kansas, who
practices wage and hour
law. You may learn
more about him by
clicking on the Contact
Us button on the left.
Mike has worked with
dozens of clients
throughout the Kansas
City area and the state of
Kansas.
| MORE ABOUT ON CALL TIME |
CHECK LIST FOR DETERMINING IF ON CALL TIME IS COMPENSABLE
(1) Terms of any employment agreement;
(2) Geographical restrictions placed on an on-call employee;
(3) Reporting time for responding to work after receiving a call to duty;
(4) Percentage of calls expected to be responded to by on-call employees;
(5) Frequency of actual calls during on-call periods;
(6) Actual uses of on-call time by an employee; and
(7) What disciplinary action, if any, is taken for failure to respond to any or a
certain percentage of calls.
When an employee is the only on call employee and is required to take all calls to
report to work, it is far more likely that the on call time will be considered work
time and will be compensable under the FLSA. However, the fact that an
employer pays some premium when employees are on call does not mean that the
time is automatically work time. For example, an employer might pay $50 for
each on call period, but this alone will not cause the court to find that the time is
work time since employers are free to pay additional money to employees even
when the FLSA does not require it to do so. Click here for the Department of
Labor Advisor for on call time.
(1) Terms of any employment agreement;
(2) Geographical restrictions placed on an on-call employee;
(3) Reporting time for responding to work after receiving a call to duty;
(4) Percentage of calls expected to be responded to by on-call employees;
(5) Frequency of actual calls during on-call periods;
(6) Actual uses of on-call time by an employee; and
(7) What disciplinary action, if any, is taken for failure to respond to any or a
certain percentage of calls.
When an employee is the only on call employee and is required to take all calls to
report to work, it is far more likely that the on call time will be considered work
time and will be compensable under the FLSA. However, the fact that an
employer pays some premium when employees are on call does not mean that the
time is automatically work time. For example, an employer might pay $50 for
each on call period, but this alone will not cause the court to find that the time is
work time since employers are free to pay additional money to employees even
when the FLSA does not require it to do so. Click here for the Department of
Labor Advisor for on call time.
| THE COURTS AND ON CALL TIME |
| MICHAEL M. SHULTZ Kaup & Shultz, LC Antioch and Santa Fe Overland Park, Kansas 66212 913-385-9955 866-385-9955 toll free and 901 Kentucky, Suite 305 Lawrence, Kansas 66044 785-838-4300 email Mike |
| MICHAEL M. SHULTZ Call us 913-385-9955 866-385-9955 toll free Email Mike |