On-Call Schedule: What It Means for Employers

What it means in practice

On-call schedules are common where work cannot wait for the next shift, such as health care, repair, utilities and IT support. A typical rotation assigns one employee per week or weekend to carry a phone and return to work if needed. The pay question is whether the waiting time is hours worked under the Fair Labor Standards Act (FLSA). It matters for non-exempt employees, whose hours drive minimum wage and overtime each workweek; exempt employees are outside those rules. This entry covers on-call arrangements and on-call pay; the general rules on breaks, travel and training are in our hours worked entry.

The federal test: engaged to wait or waiting to be engaged. DOL's regulation says whether waiting time is work "depends upon particular circumstances" and quotes the Supreme Court in Skidmore v. Swift (1944): the facts may show that the employee "was engaged to wait" or that he "waited to be engaged" (29 CFR 785.14). Employees engaged to wait are working, like a firefighter playing checkers while waiting for alarms; that time is controlled by the employer even if the employee may leave the job site during idle periods (785.15). Time is off duty only when the employee is completely relieved, is told in advance they may leave and when they must return, and the period is long enough to use for their own purposes (785.16(a)).

On call at or near the workplace. An employee required to remain on call on the employer's premises, or so close to them that the time cannot be used effectively for personal purposes, is working while on call (29 CFR 785.17, citing Armour & Co. v. Wantock). The Field Operations Handbook, DOL's internal investigator guidance, states the same rule: except for duty of 24 hours or more or employees residing on the premises, on-call time at the employer's establishment is hours worked (FOH 31d00(a)(4)). A rotation that keeps a technician in the break room "just in case" is therefore paid time, even if no call comes.

On call away from the workplace. An employee who is not required to stay on the premises and merely has to leave word at home or with company officials where they can be reached is not working while on call (29 CFR 785.17). Fact Sheet #53 applies this to modern devices: an employee who is required to carry a cell phone or beeper, or who may leave a message where they can be reached, is not working in most cases. Both Fact Sheet #22 and Fact Sheet #53 add that "additional constraints on the employee's freedom could require this time to be compensated." The handbook gives two examples of such constraints: calls so frequent, or on-call conditions so restrictive, that the employee is not really free to use the time between calls, in which case the employee is engaged to wait and the waiting time counts (FOH 31d00(a)(4)).

Required to stay home. When an on-call employee must stay home to take customer calls while the office is closed but has long periods of uninterrupted leisure, DOL accepts any reasonable agreement for counting hours worked, which should account for the time actually spent answering calls and also some allowance for the restriction on the employee's freedom to engage in personal activities (FOH 31b14).

Responding to a call is work. An employee who goes out on a call is working for the time spent on it, including travel (FOH 31d00(a)(4)). In the handbook's ambulance example, driving an ambulance home because the employer requires immediate response is work, idle time while it sits outside the house is not, and work runs from setting out on a call until returning home (FOH 31d00(a)(5)). Calls handled by phone or laptop from home are also work; DOL treats work performed at home that the employer knows about as hours worked (29 CFR 785.12; Fact Sheet #53, Example 14).

Long shifts and live-in employees. On-call duty within a shift of less than 24 hours is work even if the employee may sleep when not busy (29 CFR 785.21); the sleep-time rules for 24-hour duty (785.22) are summarized in our hours worked entry. An employee who lives on the premises permanently or for extended periods is not working all the time there, and DOL accepts any reasonable agreement on hours that considers all pertinent facts, such as a telephone operator with a switchboard at home (785.23).

Public agencies. For police and fire employees under the section 7(k) exemption, 29 CFR 553.221 applies the same principles: time at home on call "may or may not be compensable." A firefighter at home who is expected to return in a night emergency is normally not working, but restrictions so tight that the time cannot be used for personal pursuits make it compensable (553.221(d)). An officer driving a patrol car home for personal use is not working, even with the radio on, though answering calls counts (553.221(f)).

On-call pay and the regular rate. Many employers pay a stipend for being on call. Under 29 CFR 778.223, if employees on call may come and go as they please while leaving word where they can be reached, the on-call hours are not hours worked, but a payment such as $5 for each 8-hour on-call period is compensation for a job duty, like an attendance bonus, and must be included in the regular rate. The regulation says the same applies when on-call pay is mandated by state or local law. Overtime premiums are then figured on the higher regular rate; see straight-time pay for the base calculation.

Call-back pay. Call-back or call-out pay is a guaranteed number of hours' pay when an employee, after scheduled hours have ended and without prearrangement, responds to a call to do extra work. The amount above pay for the hours actually worked is not pay for hours worked: it may be excluded from the regular rate but cannot be credited toward overtime due (29 CFR 778.221(a)). Prearranged payments may not be excluded. The key question is whether the extra work was anticipated and reasonably could have been scheduled. The regulation's contrast: a retailer calling an employee in after an unexpected roof leak is not prearranged, but a restaurant that calls in servers every busy Saturday evening instead of scheduling them is.

Similar payments. The same rules apply to show-up or reporting pay for employees who report as scheduled and get less work than expected (29 CFR 778.220), and to extra payments for short notice to report on a day of rest, for being called back before a specified rest period between shifts ends, and for state or local "predictability pay" when a schedule changes without required notice (778.222). Each is excludable only if not prearranged; state-mandated show-up payments must also be infrequent or sporadic (778.220(c)). By contrast, a nightshift shift differential must be included in the regular rate (778.207(b)).

Where states differ: California. States may require pay the FLSA does not; these two are examples, not a complete list. The California Labor Commissioner (DIR) says an employee who reports for a scheduled day but is not put to work, or is given less than half the scheduled day's work, must be paid for half the usual or scheduled day, at least 2 and no more than 4 hours, at the regular rate. An employee required to report a second time in a workday and given less than 2 hours of work on that reporting must be paid for 2 hours. In DIR's example, an employee paid $15 an hour who returns for a one-hour required meeting after an 8-hour shift is owed $157.50: $120 for 8 hours, $15 of reporting time pay, and $22.50 for the ninth hour at time and one-half. DIR says reporting time pay is not used to determine overtime. See California labor laws.

Where states differ: Oregon. Oregon's predictive scheduling law covers retail, hospitality and food service employers with 500 or more employees worldwide; exempt salaried employees and leased workers are not covered (ORS 653.422; BOLI). It defines an on-call shift as any time the employer requires an employee to be available to work or to contact, or wait to be contacted by, the employer to learn whether to report, whether on or off the premises (ORS 653.412(6)). The written schedule, given 14 calendar days in advance, must include all work and on-call shifts. Adding an on-call shift without that notice earns one extra hour of pay, and not calling in an employee scheduled for an on-call shift earns half the regular rate for each scheduled hour not worked, subject to exceptions such as changes of 30 minutes or less, written employee requests and natural disasters (ORS 653.455). Unless the employee agrees, no one may be scheduled in the 10 hours after a work or on-call shift ends, and hours worked in that window are paid at time and one-half (653.442).

Recordkeeping. FLSA records must show hours worked each workday and workweek, the regular hourly rate in overtime weeks, and the amount and nature of each payment excluded from the regular rate, such as excludable call-back pay (29 CFR 516.2(a)(6)-(7)). Oregon requires records of predictive scheduling compliance to be kept 3 years (ORS 653.465).

Questions employers ask. Must we pay employees for carrying a phone? Not in most cases under the FLSA, unless other restrictions keep them from using the time for their own purposes (29 CFR 785.17; Fact Sheet #53). Does an on-call stipend affect overtime? Yes; it goes into the regular rate (778.223). Can a call-back minimum cover overtime owed? No; the excess over pay for hours worked cannot be credited (778.221).

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