March 19, 2019
Suppose you operate a 24-hour emergency hospital. In this tight labor market for veterinary technicians, you are faced with a staffing shortage for the night and overnight shifts. It occurs to you that requiring existing technicians to be on call from time to time may be a way to help solve the staffing dilemma.
But how would this affect your budget? More specifically, would you be required to pay your staff for being on-call even if they are not actually called in to work?
Well, that depends. Under the federal Fair Labor Standards Act (FLSA), employees in on-call status must be paid if they are “engaged to wait,” but not if they are “waiting to be engaged.” Hmmm. How does this obtuse rule of thumb work in the real world?
The key is whether the on-call time is predominantly for the practice’s benefit. The more the employee is under the practice’s control, the more likely it is the on-call period will be viewed as benefiting the practice and, in turn, as being compensable.
Requiring technicians to remain on the premises during their on-call time will almost certainly render this time “hours worked” under FLSA. In this regard, a federal regulation states, “An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on-call.’”
This regulation emerged from court decisions addressing whether first responders required to remain at the station while on-call needed to be paid for their waiting time. An early such case, Kelly v. Ballard, is illustrative.
Kelly involved ambulance drivers. While on-call, they had to be in the station or in the ambulance, and in radio contact with headquarters. Their activities, including eating and sleeping, were subject to the immediate answering of emergency calls as they came in.
The court concluded all their on-call time was compensable. In explaining the drivers were entitled to pay even for their time spent sleeping, the court noted, “The sleep allowed was a fitful one at best, which might be said to have been with one eye open in anticipation of the moment they would be called upon to jump to the response of an alarm.”
But most on-call requirements in the veterinary setting do not require the affected staff to remain on the premises. What then?
Under a different federal regulation, the test in these circumstances is whether “the conditions placed on the employee’s activities are so restrictive that the employee cannot use the time effectively for personal pursuits.” In such cases, the time spent on-call must be paid.
The U.S. Department of Labor (DOL) has issued guidance to help employers determine if their on-call arrangements cross this threshold.
Under this guidance, the first consideration is whether the employee “may still be able to use the on-call time to engage in personal activities, such as cutting the grass, going to the movies, going to a ball game, or engaging in other activities of his or her choosing.” Requirements to be available by phone and to refrain from drinking alcohol are not deemed to unduly restrict personal pursuits.
The practice also must consider the frequency of work calls and how quickly the individual must report to the facility when a call comes in. According to the DOL, if the individual “is unable to finish a meal, read a story to his or her child, or read a newspaper during the same on-call period, he or she probably cannot use the time effectively for his or her own purposes.”
If you determine that any on-call time should be treated as working time, what kind of pay is required? Fortunately for practice owners, FLSA does not mandate payment of a bonus or premium as on-call compensation. All that is required is to pay the worker a lawful wage, typically his or her regular rate. However, if compensable on-call time results in an employee’s work hours exceeding 40 in a workweek, overtime pay will be required.
Significantly, when a staffer is contacted while on-call, he or she should be paid not only for the ensuing work at the practice’s facility, but also for the time spent in taking the call. So, for example, if the call involves giving detailed instructions to the worker or carrying out a substantive discussion about what the call-in work entails, the practice must be sure to compensate the employee for this telephone time.
As illustrated above, the DOL’s guidance on whether employees must be paid for being on-call is highly generalized, with few bright lines. Accordingly, practice owners should confer with experienced legal counsel to determine whether to pay technicians and other staff members for their on-call hours. In this regard, it is important to apply FLSA as construed by the courts in your jurisdiction, and state law may impose additional requirements or restrictions.
Planning your on-call arrangements carefully is important in light of the potential liability to both the practice and its owners for failing to pay earned wages. Such liability may include actual damages, multiple damages, attorneys’ fees, civil fines, and in some cases, even criminal prosecution. So approach this with the mindset of Abraham Lincoln, who is reported to have said, “Give me six hours to chop down a tree, and I will spend the first four sharpening the axe.”
If you have questions about labor, employment or business laws affecting your veterinary practice, submit them to firstname.lastname@example.org. Selected questions may be addressed in upcoming articles.
Todd A. Newman, a Cornell Law School alum, works closely with veterinary practices. He is president and owner of a Salisbury, Mass., law firm (toddnewmanlaw.com) that focuses on business, employment, labor, and litigation matters.
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