Are employees entitled to be
compensated for on-call time (time where the employee is not actually
working but must be ready to respond if needed)?
It depends. The Fair Labor Standards
Act (FLSA) requires employers to compensate workers for on-call time
when the time is spent "predominantly for the employer's benefit." Theune v. City of Sheboygan,
67 Wis.2d 33, 39, 226 N.W.2d 396 (1975). There are no hard and fast
rules. The compensability of on-call time involves a fact-specific,
case-by-case analysis. Skidmore v. Swift, 323 U.S. 134 (1944).
In determining whether the time is
spent predominantly for the employer's or the employee's benefit, the
key is how restricted the employee's activities are. No single factor
determines the outcome. Instead, the courts look to a variety of factors
in determining whether the on-call time is spent predominantly for the
employer or the employee's benefit. Some of those factors are: (1) terms
of the employment agreement, if any; (2) physical restrictions placed
on an employee while on call; (3) maximum period of time allowed by the
employer between the time the employee was called and the time he or she
reports back to work (response time); (4) percentage of calls expected
to be returned by the on-call employee; (5) frequency of actual calls
during on-call periods; (6) actual uses of the on-call time by the
employee; and (7) disciplinary action, if any taken by the employer
against employees who fail to answer calls. FAIR LABOR STANDARDS
HANDBOOK FOR PUBLIC EMPLOYERS, par. 420 (Thompson Publishing Group,
Inc.).