Labor & Employment Law Daily On-call policy paying only for driver’s response time didn’t violate FLSA
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Wednesday, October 30, 2019

On-call policy paying only for driver’s response time didn’t violate FLSA

By Ronald Miller, J.D.

Under Third Circuit precedent, on-call waiting time is compensable: (1) “if the employee is required to remain on premises” during the on-call time; or (2) “if the employee finds his time on-call away from the employer’s premises is so restricted that it interferes with personal pursuits.”

Granting summary judgment against an employee’s claim his employer’s policy of not paying employees for being on-call but rather only for the time they spend responding to on-call assignments violated the FLSA, a federal court in New Jersey determined that three of the four Ingram factors weighed in favor of finding that the employee’s on-call waiting time was not compensable. The employer provided the employee with a company-issued cell phone, the frequency and urgency of calls did not preclude him from using his time for personal pursuits, and the overwhelming evidence supported the conclusion that he actually engaged in numerous personal pursuits. Only the difficulty the employee encountered in switching shifts with coworkers weighed in favor of finding that the on-call waiting time was compensable. Consequently, his on-call waiting time was not compensable (Harris v. Clean Harbors Environmental Services, Inc., October 23, 2019, Hillman, N.).

The employer is a provider of environmental, energy, and industrial services, including 24-hour emergency response services—such as cleaning spills, leaks, or biohazards. The employee, who was hired as a driver, claimed that the employer’s on-call policy, which requires drivers to be on-call on a rotating basis to provide emergency response after hours and on weekends, violated the FLSA.

On-call policy. The on-call shift begins at 5:00 p.m. on Friday and ends at 5:00 p.m. the following Friday. A driver who is on-call must report to his regularly scheduled assignments each day, but may also be called back to work after hours if an emergency situation arises. If an emergency does arise, the on-call coordinator assigns the job to one of the on-call drivers. The coordinator considers whether the driver is eligible to drive more hours under Department of Transportation regulations, whether the driver is trained for the equipment needed, and the driver’s work schedule.

Drivers are not paid for the time they are on-call but not working. The employer provides a company-issued cell phone to all drivers for on-call purposes. The driver is paid from the time he accepts the job through completion of the job.

Upon being given an on-call assignment, the driver reports to the employer’s facility and travels to the assignment from there. The employer alleged that drivers are permitted to get into their uniforms after they arrive at its facility. Further, it claimed that drivers are paid for four hours of time if an on-call assignment is cancelled after the employee accepts it.

Degree of freedom. On-call drivers are not required to remain at the employer’s facility, but instead are free to return home. Drivers can also leave their homes during their on-call shifts. Under the policy, drivers are free to engage in personal activities, so long as the activities do not put them in a condition that renders them incapable of safely performing the essential functions of the job. However, the employer’s policy requires drivers to answer or return on-call phone calls within 15 minutes. Moreover, the policy requires drivers to report to the employer’s facility within an hour of speaking with an on-call supervisor.

The policy permits drivers to switch on-call shifts by finding a replacement driver and submitting an on-call replacement form. The employer typically approves such a request. If a driver is not available for certain hours of an on-call shift due to other obligations, then the driver can inform the employer, and he will not be called during those hours.

During the employee’s employment, the facility where he worked only received two after-hours emergency calls per month. The employee was only called to work on an on-call shift about once a month. During his on-call shifts, the employee engaged in personal activities, including socializing with family and friends, going to the gym, going to the movies, and the like.

The employee was fired in August 2017 after he failed to answer a phone call from the on-call coordinator. He filed suit against the employer alleging violations of the FLSA and New Jersey Conscientious Employee Protection (CEPA). The employer moved for summary judgment.

The employee alleged that in July 2017, he made a complaint to a scheduling coordinator about how restrictive the on-call policy was. After making his complaint, the employee had an altercation with another coordinator relating to the employee dropping his kids off at day care as he needed to leave an on-call assignment early to drop his kids off. The next time that coordinator was on, the employee overslept, and missed an on-call call, received his fifth warning, and was subsequently terminated.

On-call waiting time standards. The court reviewed the employee’s claim under the standard established by the Third Circuit in its 1998 Ingram v. County of Bucks decision. In that case, the appeals court recognized that Department of Labor regulations establish two circumstances in which on-call waiting time is compensable under the FLSA. First, “if the employee is required to remain on premises” during the on-call time.” Second, if the employee, though not required to remain on the employer’s premises, finds his time on-call away from the employer’s premises is so restricted that it interferes with personal pursuits.”

In this case, the second scenario applied. The Third Circuit applies a four-factor test: (1) whether the employee can carry a beeper and leave home: (2) the frequency of the calls and the nature of the employer’s demands; (3) the employee’s ability to maintain a flexible on-call schedule and switch on-call shifts; and (4) whether the employee actually engaged in personal activities during on-call time.

With regard to the first Ingram factor, it was undisputed the employer provided the employee with a company-issued cell phone. Moreover, the employee admitted he was permitted to leave home. Thus, the first factor cut clearly in favor of finding his on-call waiting time was not compensable. As to the second factor, the on-call policy required that employees return an on-call call within 15 minutes and then report to the employer’s facility within an hour. However, even looking at the employee’s busiest weeks, he was not able to demonstrate that the frequency and urgency of calls precluded him from using his time for personal pursuits. Thus, this factor weighed in favor of finding his on-call waiting time was not compensable.

Turning to the third Ingram factor, the court noted that it was undisputed that failure to respond to a call could result in disciplinary action. It was also undisputed that the employer’s on-call policy permitted employees to trade shifts with one another. However, the court agreed with the employee that given the small pool of workers, as a practical matter, it was nearly impossible for him to switch shifts. Thus, this factor weighed in favor of finding that the employee’s on-call waiting time was compensable.

The fourth Ingram factor asked whether the employee actually engaged in personal activities during the on-call time. The court concluded that this factor also weighed in favor of finding that the employee’s on-call waiting time was not compensable. The only limitations were that he had to be able to respond to the call within one hour and be fit for duty when responding. Therefore, the court found that the fourth factor weighed heavily in favor of finding that the employee’s on-call waiting time was compensable. Accordingly, the employer’s motion for summary judgment was granted.

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