When Do Limits for On-Call Employees Become Restrictive?

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By Keith M. Hill

“We should be paid for the time we spend loading and unloading our vans and checking our computers for assignments,” Carlton, a cable-TV repair technician, said to Rhoda, the company payroll manager. “We consider this work.”

“Those activities are part of the agreement of being able to take one of the company's vans home and, therefore, are not compensable,” Rhoda said.

FACTS: A group of cable TV line technicians sued their employer, a cable service provider, under the Fair Labor Standards Act and the Illinois Minimum Wage Law. They claimed that the company did not pay them for compensable work time.

The line technicians, who were current or former employees, claimed in a lawsuit that they were entitled to compensation for on-call time and meal breaks they worked through for which the company automatically deducted one hour from their schedules. They also claimed that the company failed to pay them for overtime work in violation of federal and state wage laws.

The company encouraged them to spend time before and after their shifts performing tasks such as reviewing assignments, loading and unloading their vehicles and performing work on portable computers, all without proper compensation, they said.

The company claimed that the technicians' on-call time was not compensable as working time because it placed minor restrictions on how line technicians spend their time during on-call shifts.

Line technicians, who worked in a central-city facility, were allowed to park their work vehicles at home. Before work shifts, they were required to load equipment onto the vehicles, inspect the vehicles and use company-issued laptop computers to check routes and receive job assignments. After shifts, they were required to unload the equipment.

On-call shifts were assigned on a rotating basis with each line technician working one week-long on-call shift about every six weeks. On-call technicians were required to respond to calls to repair cable failures within 30 minutes.

ISSUE: Were the technicians entitled to compensation for on-call time and pre- and post-shift activities?

DECISION: The line technicians are not entitled to compensation for on-call time and pre- and post-shift activities, a federal district court said in ruling in favor of the employer. 

The limitations on the technicians during their on-call shifts were no more restrictive than those placed on some on-call employees in similar circumstances, the court said. Although several technicians claimed that being on call disturbed their regular routine, “the test is whether they could conduct normal activities of private life while on call, not whether they could do so without any inconvenience,” the court said.

The technicians relied heavily on the frequency with which they were called in during on-call shifts to support their claim that they were unable to engage in personal pursuits while on call, but the court found that they failed to provide clear evidence regarding the percentage of days on which they were on call that they were called in to work.

There was evidence that on the days technicians were called in they were typically only called in once, the court said. This shows that the on-call time was not spent predominantly for the company's benefit, it added.

The technicians failed to show that they were entitled to overtime compensation under the FLSA for their pre- and post-shift activities, the court said. Courts have found that activities such as communications to receive assignments and carrying equipment between company vehicles and employees’ homes were incidental to a commute and, therefore, noncompensable under the Employee Commuting Flexibility Act of 1996, it said.

The technicians failed to show that the company's written employment policies describing compensable work created a custom or practice of compensating them for their pre- and post-shift activities, the court said. The technicians’ claims stem from unreported time, but the company's policy makes clear that “line technicians must report all of their time to be paid for it,” it said.

Two technicians presented “sufficient evidence” regarding the company's knowledge of unpaid lunch breaks, the court found (Brand v. Comcast Corp., N.D. Ill., No. 1:12-cv-01122, 9/28/15).

POINTERS: Under the FLSA, employees who are required to remain on call at the employer's premises or so near to the worksite that they cannot use the time effectively for their own purposes must be compensated for the time spent in on-call status.

Activities before and after a shift that are not indispensable to a job's performance and are not regarded as part of an employee's principal activities generally are noncompensable. Employers can exclude these activities from compensable work time unless payment is required by contract, or a workplace custom or practice.

For more information, see PAG's “Determining Hours Worked” chapter.

This analysis illustrates how courts resolve pay-related disputes. The names and dialogue are fictitious.