On-call employees perform work on an intermittent basis and must remain available for work and report for duty, as necessary. States can enact employment laws governing on-call employment beyond what necessary under federal law. Florida law does not address on-call compensation, and employers must comply only with the federal labor regulations administered by the U.S. Department of Labor.
According to the Fair Labor Standards Act, employers must pay their employees for their on-call time if they require their employees to remain at specific worksites or at a client’s worksite for their entire on-call shift -- even though they are not actually working the entire time. If an employer does not require an employee to remain at a worksite, federal courts apply a case-by-case analysis to determine whether an employer should pay an employee for on-call duty.
Federal courts considering whether on-call pay is necessary take various factors into account. Courts will review the extent of the employers’ requirements and employees’ job duties; the geographical limitations placed on on-call employees; how quickly employees must respond or report to their on-call requests to report for duty; the control placed on an employee’s ability to pursue outside interests; and the personal freedoms afforded to on-call employees during their on-call shifts.
Geography and Control
If an employee is geographically restricted to remain in a small area with constraints on personal freedom or travel, an employer may have to pay him for the entire on-call shift. For instance, if an employer requires an employee to stay within five miles of its worksite, the employer is significantly restricting the employee’s ability to use his off-duty time to pursue personal interests. However, if an employer requires an employee to stay within the state, the limitations on personal interests are not significantly restricted.
Similarly, if an employer places significant limitations on an employee’s ability to schedule personal activities during his on-call shift, the employer may be required to pay him. If an employer’s on-call requirements significantly hinder an employee’s ability to pursue personal interests, an employer must compensate him. The degree of “control” necessary to trigger payment requires courts to perform fact-sensitive reviews.
If an employer requires an on-call employee to respond immediately after being called to duty, an employer may have to pay him for his entire on-call shift. Similarly, if an employer requires an employee to respond to his on-call duties frequently or an employee is called to duty multiple times during his shift, the employer must pay him for the entire shift, and not only when he is actually performing work.
Since state laws can frequently change, do not use this information as a substitute for legal advice. Seek advice through an attorney licensed to practice law in your state.
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