In our experience, the majority of federal sector work situations in which on-call or waiting time issues arise involve employees who are required to work through a meal period by remaining on-call or compelled to eat at their work site, such as a desk, guard station, etc. In addition, technicians in the Navy are compelled to remain onboard naval vessels at sea for days at a time. The Navy has inconsistently applied its policies on compensating these technicians. Many technicians are paid a minimum of 16 hours per day for time spent at sea.For reasons unknown, other technicians doing the same thing are paid fewer than 16 hours per day.
We have successfully represented technicians, police officers, and other employees in on-call cases in the federal sector recovering backpay and changes in employer practices in these areas.
DEFINITIONS OF ON-CALL AND WAITING TIME UNDER THE FLSA AND TITLE 5 OVERTIME
The law concerning the compensability of Title 5 overtime tracks the FLSA closely with regard to on-call time. Thus, for purposes of the FLSA, OPM defines "work time" under 5 C.F.R. Section 551.401 as:
(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work." Such time includes:
(1) Time during which an employee is required to be on-duty;
(2) Time during which an employee is suffered or permitted to work; and
(3) Waiting time or idle time which is under the control of an agency and which is for the benefit of an agency.
OPM has set forth a separate regulation for time spent on standby duty or in an on-call status. Under 5 C.F.R. Section 551.431
(a), OPM defines time as being spent on standby duty as:
(1) An employee is on duty, and time spent on standby duty is hours of work if, for work-related reasons, the employee is restricted by official order to a designated post of duty and is assigned to be in a state of readiness to perform work with limitations on the employee's activities so substantial that the employee cannot use the time effectively for his or her own purposes.
Interestingly, OPM has defined under Section 551.431
(b) when an employee will be considered to be "off-duty" although the employee is "on-call:"
(1) The employee is allowed to leave a telephone number or to carry an electronic device for purpose of being contacted even though the employee is required to remain within a reasonable call-back radius; or
(2) The employee is allowed to make arrangements such that any work that may arise during the on-call period will be performed by another person.
The case law under the FLSA primarily concerns factual situations in which employees are permitted to go home or to leave word where they may be contacted while on-call.Nonetheless, in these cases, some of the factors that the courts assess to determine whether the standby time is compensable are:
Whether the time is spent on the employer's premises;
Any geographic restrictions on the employees;
The frequency of the calls received during the standby time;
How quickly the employees must respond to the calls;
Whether the employee may use a pager;
The degree to which the employees' personal activities are restricted during the on-call shift.
Any discipline to which the employee is subject if he misses or ignores a call; and
The nature of the employment involved.
No one of these factors is dispositive and this list of factors is illustrative, but not exhaustive.As the courts have repeatedly stressed, all of the facts and circumstances must be examined in each case to determine whether on-call time is compensable.
Our firm won a case in the Tenth Circuit on behalf of fire fighters entitled Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991). In Renfro, the fire fighters received an average of 3-to-5 calls per on-call shift and were required to respond to the fire station within 20 minutes of being called or they would be disciplined. The employees were otherwise free to do as they pleased. The court held that the restrictions placed on the fire fighters' personal activities were too great and they were awarded FLSA overtime pay plus liquidated (double) damages for their entire 24-hour shifts.
The case law regarding employees who are restricted to their employer's premises is strong. In 1994 and 1995 decisions issued by the U.S. Court of Appeals for the Ninth Circuit, the court held that on-call/standby time spent by assistant probation officers and by nurses was compensable under the FLSA. The employees were rarely called out. SEIU, Local 102 v. County of San Diego, 35 F.3d 483 (9th Cir. 1994); SEIU, Local 102 v. County of San Diego, 60 F.3d 1346 (9th Cir.), cert.denied, 3 WH Cases2d 64 (1995). However, they had to remain on the employer's premises during their standby time; they had to notify their supervisors of their whereabouts at all times; they could not drink alcohol and they had to respond immediately if they were called. The employees were permitted to exchange shifts.They also had access to weight lifting facilities, a pool table, a satellite TV, and a staff lounge. Interestingly, the court ruled against the employees who permanently resided at the employer's work sites and ruled in favor of the employees who resided elsewhere, but who were required to remain at the employer's premises during the on-call shift.
Lastly, OPM's regulations expressly provide that sleep time on the agency's premises is not compensable if the employee's shift is 24 hours or longer. 5 C.F.R. Section 551.432. Sleep time may be excluded, however, only if the employee receives a total of 5 hours or more of sleep. In addition, only a maximum of 8 hours may be excluded as work hours. The facilities provided for sleeping must also be "adequate facilities" and the sleep period must usually be uninterrupted.
TITLE 5 OVERTIME
As noted above, for the most part, the rules defining work time with regard to on-call or waiting time are the same under Title 5 and FLSA.