The Law Governing On-Call Work
The legal framework of on-call work is established largely through the federal Fair Labor Standards Act (FLSA), which provides guidelines for compensable time. The FLSA requires employers to pay employees for all compensable time worked, including that in which the employee is required to remain on standby, but not necessarily for all periods of on-call or standby time. So the question remains, how do employers know the difference between compensable and non-compensable time?
The Department of Labor has issued Interpretive Bulletin 600, which states, "[t]he amount of pay to be charged by an employer for a period during which he requires the employee to wait … has no relevancy whatever in determining whether or not (the time at home is) waiting time."
If employees are required to remain on standby on the employer’s premises or so close thereto that he/she cannot use the time effectively for his/her own purposes, this is considered "waiting time" and, therefore, compensable. However, with respect to time spent at home, the general rule is that waiting time spent away from the employer’s premises is not compensable "if the employee is free to use the time for his own purposes , even though he may be required to be available for occasional calls to duty." 9 Federal Labor Standards Handbook § 1730 (Nov. 1997).
This can be a gray area because the court has held it is not the employer’s obligation to ensure that an employee has no distractions at home during on-call time. For example, a court held waiting time was not compensable even if the employee was required to keep a pager and respond immediately to pages even if it meant leaving work, going home, or conducting other errands in connection with his employment. See Brody v. Burbank Glint Fire Department, 793 F. Supp 1, 2 (D.D. Cal. 1992) (unpublished opinion). Despite this, the general consensus amongst the courts is that short walks to the bathroom, vending machine, etc., are sufficient to interrupt on-call time if the interruption requires effort on the part of the employee.
There are some notable exceptions, however, including:
An employer may, however, add a non-compensable call-in pay policy, which includes best practices such as paying for more than just 15 minutes, offering greater compensation for night shifts and weekends, and providing an adequate call-in period before beginning the shift, if they desire to make "even greater" an employee’s experience during stand by time.
What an Employer Must Offer and What an Employee is Entitled to
Employers Obligations – and Employees Rights – Under 24-7 On-Call Work
An employer is required to provide 24/7 on call employees with their remaining wage and hour entitlement, including rest periods and meal periods. In other words, the on-call industry standard requirement to maintain the availability of employees during hours that they would ordinarily be off work does not negate an employer’s duty to provide their workers with the rest and meal periods to which all employees are entitled.
If an employee is expressly or impliedly restrained from going on about his or her own personal business, such as in the industry standard on-call requirement, the time spent waiting for actual work is not considered free from obligation and must be compensated. (Southern Cal. Gas Co. v. Public Utilities Com. (2010) 50 Cal.4th 31, 65.)
On-call industry practice is not legally relevant to whether the employee has been placed under restraint or not. (Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 820.) Although many employers have adopted this industry standard, there is no law that requires on-call employees to be physically present during the entire on-call period.
Work-Life Balance and On-Call Rights
The National Institute for Occupational Safety and Health (NIOSH) has made a concerted effort over the past three years to address the impact of various types of on-call work on workers’ health – mental and physical. In August 2015, NIOSH issued a "Science Blog" entry titled, Trends in Work Hours and Mental Illness in the U.S." In that entry, NIOSH concluded: "While researchers have raised concerns about the health effects of extensive work hours, evidence is limited for the impact of unique work schedules outside of the traditional 9-5 Monday through Friday workweek on mental health. This research adds to the growing body of evidence suggesting continuous work hours may have an adverse effect on health…"
The blog cited a 2003 study that showed a possible link between mental disorders and men working in jobs with short (less than 10 hours) and long (more than 48 hours) work shifts. That same study found that men working a rotating shift with at least one night shift had a high risk of developing a mood disorder. There was scant evidence reported for women in this study.
The blog also cited a 2012 NIOSH study ( Shifts in work hours and mental wellbeing among business owners, discordant siblings, and individual workers, Michael Andrew, et al., American Journal of Epidemiology, 176(10), 2012) using data from the National Health Interview Survey showing a greater incidence of any mental disorder among workers who reported working less than 20 hours per week or 60 or more hours per week. This study did not define working hours to the degree required for purposes of the trend described above, and it is unclear whether any of such workers were on-call or who was responsible for filling in when such individuals were unavailable to work (assuming they were employed by large enough companies to have someone there).
While there is no such evidence directly addressing on-call issues, the effect on sleep and personal time of being "on call" 24/7 is obvious. If you are "on call," you cannot count on having a restful evening or night’s sleep. And whenever you are "on call," much or all of your day is unavailable for personal time – personal time that working people need to be physically and mentally healthy.
To add a significant twist to the issue, some employers require employees who are required to be "on call" to use their own telephones to answer calls and to have their telephone radios turned on 24/7 – meaning they get alerted in the middle of the night (that’s the "24/7"). This practice is difficult to justify, especially where the employee is not compensated for the hours on call. As we note above, the practice of working "on call" 24/7 and/or carrying a radio at all times can have negative health effects, and employees can hardly be expected to turn off the phone ("make themselves unavailable") in furtherance of their own rights.
Case Law and Jurisprudence
Courts have addressed the legality of on-call work within the context of both the FLSA and state law. For instance, in its 1978 decision in Ballou v. General Electric Co., the Court of Appeals for the Second Circuit held that an employer’s policy requiring its servicers to obtain advance permission to leave their homes while on call was a substantial limitation on the employees’ personal activities. Thus the court found that the company had provided kiasu breaks. The court in Ballou decided the case based on the employer’s policy alone, without discussing the specific frequency or duration of the calls in question. Recently the Fifth Circuit considered the issue in Desombre v. City of Galveston, Tex., No. 13-20257 (5th Cir. Aug. 6, 2014) (affirming summary judgment for employer in case alleging that on-call police officers were not compensated in accordance with the FLSA). In Desombre, the on-call police officers could do whatever they wanted when not necessary to respond to a call. They were paid only for the time that they actually responded to a call. The court found this acceptable under the FLSA, noting that the officers received 24/7 compensation for their time, had access to a city vehicle and were left undisturbed so long as the vehicle was operational and on their person. The court treated several timekeeping options, including logging time spent on calls and the use of honor and administrative time ("lifeguard" time), as sufficient. The "lifeguard" time allowed on-call officers to determine their own start and stop time for each shift. However, in the course of its analysis, the court in Desombre stated that there might be FLSA implications if the availability of the vehicle was combined with an inability to leave the general work area, a social stigma associated with such a situation or non-telephonic on-call duties. One could attempt to fashion a test from Desombre, but the court did not spell one out. Rather, it suggested scope and personal consequences as determining factors. The court also noted that its analysis was influenced by the fact that the officers were paid on a salaried basis, which left them with no real incentive to end their time at work. Other courts have applied the factors mentioned but came to different conclusions, finding that the on-call employees had substantive restrictions on their activities such that they required payment. For example, in Morris v. Affinity Health Plan, 851 F.Supp.2d 418 (S.D.N.Y. 2012), the court found that nurses were not adequately compensated for time spent responding to calls that could be dialed directly to their mobile phones. According to the court, the significant degree of control over the nurses’ schedule and their freedom of movement that existed in Desombre was not present in Morris, where the calls were frequent, the responses were more stressful and the calls were answered directly from the nurses’ personal phones.
Top Industries Affected by 24/7 On-Call Work Policies
Healthcare and IT are two sectors where 24/7 on-call policies are extremely prevalent. In a hospital setting, 24/7 on-call policies are common for many positions, ranging from surgeons to nurses to IT support. In addition to the obvious toll on sleep and personal life, the on-call nature of healthcare can make indefinitely extended shifts dangerous and reduce the quality of care: almost 20% of surveyed physicians reported sending patients to other hospitals due to being unable to work during long stretches on call. These long stretches of duty are endemic to the field, but enforcement of overtime regulations can financially compensate those doctors and nurses who are being worked too hard.
Information technology and IS-IT professionals face similar challenges in on-the-clock labor: they have to be on standby for customer demands, often in a foreign and demanding timezone. In practice, this means that they must wait, constantly issued notices for customer requests, day or night. It has been shown that 24/7 on-call policies in this field can costing "more than $200,000 annually in lost productivity and work-life balance , " and in some cases, "40% of system administrators reported that they had personally experienced symptoms consistent with clinical stress."
For emergency services workers on a municipality’s dispatch, either for emergency medical services or police force dispatch, on-call policies and practical realities means constant monitoring of active phone lines and radios at all hours of the night. Because their mandate requires a speedy response to emergencies, these dispatchers must be constantly ready to mobilize emergency crews via telephone, and often in the presence of customer or citizen face-to-face requests. As with other on-call positions, this 24/7 readiness means constant stress on the person’s "on-call" time: any lapse in situational awareness can mean the difference between timely and disastrous, detecting a false-negative for an emergency call can mean the difference between minutes on which lives depend.
The frequency of these 24/7 on-call policies and practical realities makes it a challenge for municipalities and other entities that use them to ensure compliance with overtime regulations.
How to Secure Your Rights as an On-Call Worker
- Communicate with your employer. When it comes to 24/7 on-call employment, the most important thing for you as an employee to do is to communicate with your employer about your needs. Do you have childcare concerns? Is your commute home from work too long to make it reasonable for you to travel when called in? You should bring your concerns up with your employer early on – doing your best to come up with a solution that works for both parties.
- Be diligent about documenting your work hours. Make sure that you are tracking your hours accurately. If it’s your responsibility to call in for your on-call shift, be sure to document when the phone calls and shifts start and end. This may become important if you get into a dispute with your employer about the time you put into being on call, and what the compensation for that time should be. Your employer should be able to access your records easily, especially if they log your hours, but it’s always good to keep your own records just to be safe. Documenting any written communication you’ve had with your employer about expectations of your work hours is also a good idea.
- If that doesn’t work out…ask for help. If you find that you just aren’t able to resolve your 24/7 on-call challenges with your employer you may want to seek legal assistance. In particular, one of our Massachusetts Employment Attorneys may be able to assess whether or not the employer has violated the law in regards to your compensation for your on-call status. At the very least, you will have gained clarity on the situation and/or it will have been documented that you filed a grievance with HR about working 24/7 on-call shifts that you cannot reasonably meet.
Future Outlook on On-Call Work Laws
As the nature of work continues to evolve, so too will regulations surrounding it. An area that is likely to see changes in the coming years is 24/7 on-call work. Labour and business groups have raised concerns about the possible effects of such changes on both workers and employers. In addition, emerging technologies, particularly in the form of artificial intelligence, could both facilitate and mitigate some of the issues associated with on-call work.
One area of potential regulatory change concerns minimum notice periods for on-call work. Currently, in Canada, there are few minimum notice requirements when an employer will demand that their employee be on-call. The likelihood that an employer will be required to provide some measure of notice was increased by a decision that the Ontario Superior Court of Justice released in Bradford v. Canada, which held that an employer would need to give employees a reasonable amount of notice in order to alter their work schedule. This decision is under appeal. There is also a possibility that some portions of the Bill 148 amendments to the Employment Standards Act, 2000 may remain in effect, even if the legislation repeals most of the other amendments – in particular, those provisions concerning minimum notice and the associated "Three Hour Rule" are controversial and have not been set aside by the courts , and so they remain in effect at this time.
Some proposed legislative amendments would also prohibit shifting of on-call shifts with another employee and eliminate "isolated work day" exceptions which can serve to undermine existing protections surrounding on-call work because of the need to balance the needs of a 24/7 service operation with worker rights. It is possible that developments at the federal level in respect of the Canada Labour Code (including Bill C-65 concerning harassment and violence, as well as the proposal to amend the Code to prohibit harassment and violence) will encourage provinces to follow suit at the provincial / territorial level: bill 92 of the New Brunswick legislature proposes to include obligations concerning workplace sexual harassment in its Occupational Health and Safety Act, which may help inform what might occur in Ontario.
While many of these trends may be subject to arguments and proposals both for and against them, consideration must also be given to the possibility that artificial intelligence (AI) may mitigate or eliminate many of the most extreme ramifications concerning protections during on-call work. In particular, advancements in AI and machine learning may mean that fewer workers will be required to be on-call at all, much less 24/7. Even those in the gig economy may be impacted, either by a decline in work or by the development of new, largely computerized, forms of work.