On Call Shift Compensation

Under certain circumstances, employees scheduled for on call work may be entitled to on call shift compensation.

New legal developments may later make that requirement apply to a broader set of employees under a wider array of circumstances.

The federal Fair Labor Standards Act doesn’t provide a straightforward answer to questions about on call shift compensation.

Under the FLSA, an employee generally isn’t entitled to get paid for a certain time period unless they spent that time actually working.

It’s possible that an employee could be entitled to on call shift compensation under the FLSA. But whether they are or not depends heavily on the specific facts of each case.

Generally, that question turns on how much control the employer exerts over the employee during that on call time and how free the employee is to use their time for their own purposes.

As a rule of thumb, the U.S. Department of Labor’s Wage and Hour Division says that an employee’s on call time is compensable if the employee is required to remain at the employer’s premises or so close to it that they cannot use that time for their own purposes.

On the other hand, employees who are not required to stay at the job site during on call periods have a harder time proving they’re entitled to compensation for that time.

If an employee is still free to do what they want with their on call time, they’re considered to be “waiting to engage” and no compensation for that time is required by the FLSA.

Employees that need only let their employers know how to reach them during on call time are not likely to be entitled to compensation for that time.

However, some employers place certain restrictions on their employees during on call time, such as restrictions on activities or how far they may go from the work place, how much time they have to respond to a call, or how many calls they may have to take while on call.

State Protections for On Call Shift Compensation

While the FLSA may be of limited help to on call workers, some state and local governments have begun to enact laws that require employers to pay employees for time spent on call.

In 2014, San Francisco enacted an employee protection law that among other things requires compensation for employees if the employer makes changes to their work schedule with less than one week’s notice.

For each such change, the law entitles the employee to one hour’s worth of pay.

Several states have introduced other legislation that could help curb the practice of on call scheduling.

Bills introduced (but later withdrawn) in the New York legislature in 2015 would have required employers to compensate employees for at least four hours’ worth of wages for each day on which the employee was expected to call in less than 24 hours before the beginning of a scheduled on call shift.

While these bills were eventually withdrawn, New York attorney general Eric Schneiderman gave the issue some attention in April 2015 when he sent a letter to 13 major retailers seeking details about their on call scheduling practices.

Schneiderman emphasized to the retailers that these scheduling practices can be extremely disruptive to the employees affected.