Partner
You are only entitled to pay pursuant to the Fair Labor Standards Act when you are deemed to be “working” while waiting on-call. In order to demonstrate whether you are “working,” you have to demonstrate that you cannot use your time effectively for other purposes. However, if you are able to perform other activities while on-call, with some restrictions, you will not be considered to be “working.” Some the restrictions may include being within close proximity to work and not drinking alcohol.
The Department of Labor and courts evaluate the following 6 factors to help clarify whether you are “working.” Please keep in mind that each case is different and you should consult with an overtime lawyer about your specific situation.
The number of calls do you received while on-call;
The amount of time you have to respond to the calls;
The number of miles you have to remain in proximity to the business while on-call;
The amount of notice you receive for on-call assignments;
The manner in which you receive your calls (telephone, pager or required to listen to radio traffic); and
The ability to perform personal activities while on-call.
Please contact us if you believe that you have not been compensated for the time you spent on-call.
Date: 11/8/10 – Tom McKinney – Castronovo & McKinney