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When Should Employees Be Paid for Being On-Call?

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EMS provider agencies -- especially those in small towns or rural areas -- frequently assign "on-call" duties, during which times EMTs and paramedics are generally free to do as they please, but must wear a pager or other communication device and report for work when notified. When employees are asked to remain on call, the question arises whether the time spent on-call counts as "hours„ worked" (or "compensable" time) that„must be paid and counted toward overtime entitlements under applicable law.„

Although the basic rules for determining whether on-call time is compensable are easily understood, they can be difficult to apply, especially in close cases.

Recently, the Wage and Hour Division of the U.S. Department of Labor (the government agency that enforces federal wage and hour laws) issued an opinion letter regarding the on-call time of ambulance service employees. This letter provides a useful illustration of the rules in this area.

'Engaged to wait' or 'waiting to be engaged'

The compensability of on-call time is governed by the federal Fair Labor Standards Act and may also be governed by the laws of individual states. Under the FLSA, whether time spent on call is compensable depends on the amount of freedom the employee has while on call. For example, if on-call employees are required to remain on the employer_s premises or so close to it that they can_t use the time for their own purposes, such time must be compensated.

On the other hand, if the agency allows on-call employees to go wherever they please as long as they are easily reachable by the employer and can respond within a reasonable amount of time, the time would not be compensable. This distinction is sometimes phrased as time spent "engaged to wait," which is compensable, versus time spent "waiting to be engaged," which isnot.

When deciding whether an employee's freedom while on call is sufficiently restricted to make it compensable, the DOL commonly considers the following set of factors:

΄„ Are there excessive geographical limits on the employee's movements?

΄„ Is the frequency of calls unduly restrictive?

΄„ Is the employee subject to a fixed response time that is unduly restrictive?

΄„ Can the employee easily trade on-call responsibilities with other employees?„

΄„ Can the employee use a pager or other communication device to ease restrictions?

΄„ Is the on-call policy based on an agreement between the parties?

As the above factors reflect, determining whether a particular employee's on-call time is compensable is very fact-sensitive.

The opinion letter

In its May 23, 2008, opinion letter, the DOL considered the case of employees of an ambulance service that covers two small communities. The employer had two paid employees plus some 23 unpaid volunteers. The two employees_ regular paid shift went from 8 a.m. to 4 p.m. Additionally, these two employees were required to be on call from 6 to 8 a.m. and from 4 to 6 p.m., but the service did not pay them for these on-call times.

During on-call time, the employees wore pagers. They were also required to remain within a particular geographic area and, if paged, had to drive their personal vehicles to the squad-house to pick up an ambulance and respond to the call within eight minutes. However, the employer stated that no employee had ever been disciplined for failing to respond within the eight-minute limit.

The frequency of calls varied by season. In the winter, calls were relatively frequent, averaging approximately one call during every four hours of on-call time. In the summer months, calls were much less frequent; employees could expect to receive a call about once a week during on-call times and some weeks would receive no calls at all. These employees had little opportunity to trade on-call assignments, and they could not turn down calls.

The DOL determined that on-call time for these employees was compensable„during the winter months. The„department noted, in particular, that the employees were subject to extremely strict response times that, combined with the frequency of calls during the winter, effectively precluded them from all but the narrowest„ range of personal pursuits. Although they were permitted the use of pagers, they could not trade shifts or turn down calls. However, with respect to the summer months, the DOL reached a different conclusion: Although all other factors remained the same, the department concluded that calls during the summer were sufficiently infrequent that on-call time was not compensable.

Although this DOL opinion letter doesn't break any new ground, it provides a useful illustration of the factors an„EMS employer should consider when determining whether on-call time must be treated as compensable under the FLSA.

And so Ú

Employers who require EMTs and paramedics to work on-call shifts should consider whether they are properly classifying such time. Factors to consider include the employees' required response time, the frequency with which they are called in to work, any geographic limits on their movement and their ability to trade shifts with other employees. Also, many individual states may have their own wage and hour laws that impact the compensability of on-call time, so each„EMS agency should be familiar with its state's labor laws as well as with federal law. Employers who think their employees' on-call time might be misclassified or who simply want an evaluation of whether particular employees' on-call time is compensable under the FLSA or applicable state laws should turn to their legal counsel for guidance.„

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