FMLA regulations say workers "on-call" don't get overtime.

by on March 27, 2009 · 0 Comment POSTED IN: HR Info Center

Overtime laws don’t extent to on-call status

If you keep off-duty employees on call, they don’t get overtime pay unless the on-call status significantly limits what they can do with their free time.

That’s the upshot of a case involving an Illinois employer whose employees were required to respond to a certain percentage of emergency call-ins on nights and weekends.

They sued for unpaid overtime under the FLSA regulations. The employees said because they could be disciplined if they didn’t meet the response standard, the time they spent waiting for calls counted as work time. But the court disagreed.

Key to the decision was a phrase in FLSA regulations that defines when an on-call employee is deemed to be working while waiting. This occurs when the employee must remain on call “on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes.”

HARDSHIP NOT SUBSTANTIAL

Such was not the case here, the court said.

The response standard did mean employees sometimes couldn’t leave town for the weekend. But that didn’t mean they had to stay in the house.

The FLSA regulations only meant such an employee had to remain within a two-hour radius of his duty station; since that was the amount of time he had to report.

“Is that such a hardship that it turns his waiting into working? We think not,” the court said.

Cite: Jonites v. Exelon Corp., No. 07-3053, 7th Cir., 4/3/08. Issue 7.07 11-03-08

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