Is “On-Call” On the Clock?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

February 27, 2019

Employees on-call is a practice throughout several sectors in our economy. The general principle under the FLSA is that if an employee is “engaged to wait,” then that is considered compensable. However, if the employee is “waiting to become engaged,” that is non-compensable. The difference between the two is where an employee’s freedom of movement is limited (“engaged to wait”), then that is considered compensable time. But, if the employer simply requests the employee to remain in town and stay sober, that is “waiting to become engaged.”

Some states have additional protections to provide employees with predictable scheduling and to reduce employer-initiated cancellations. For instance, California requires employees to receive reporting pay when: (a) they are required to report for work and, after reporting for work, not put to work or are furnished less than half of the employee’s usual or scheduled day’s work; or (b) the employee reports a second time in a single workday and Is given less than two hours of work on the second reporting.

In the case of Ward v. Tilly’s Inc., a California appeals court considered Tilly’s requirement that an employee on call was required to call in before the beginning of each shift to see whether the employee needed to come to work. Tilly’s is a retailer, and thus assigned employees to on-call status so that they would not be asked to report to work unless they were needed. Employees were required to call two hours before the start of their shift (or, if they were working a regularly scheduled shift followed by an on-call shift, they would be advised during the regular shift whether to remain for the on-call shift). If they were required to come to work, they would be paid from the time they arrived at work until their shift concluded. If, however, the employee was told not to come to work, the employee would not receive compensation.

Current and former Tilly’s employees filed a class action suit, stating that Tilly’s requiring them to call in two hours before the start of their shift meant that the call was reporting for work. The employees claimed that the call-in was eligible for “reporting pay” requirements under California state law. For example, instead of employees reporting to work and then being told that they did not need to work that day and to return home (the traditional concept of when reporting pay would be required), the Court ruled that Tilly’s did the same thing with employees by requiring them to call in from their on-call status. California requires employees to receive reporting pay if they are required to report for work, do report but are not put to work or are furnished less than half of the employee’s usual or scheduled day’s work, or “required to report for work a second time in any one work day and is furnished less than two (2) hours of work on the second reporting.” Tilly’s argued that reporting for work meant physically showing up for work. The Court of Appeals rejected Tilly’s argument, stating that Tilly’s call-in requirement precluded employees from working at other jobs, going to school, or taking care of other matters. According to the Court, “this is precisely the kind of abuse that reporting time pay was designed to discourage.”

Although this case arose under California law, we see a potential for such a claim occurring under the federal FLSA. The typical on-call employee doesn’t have to do anything except respond to a call. That response is considered working time. However, where an employee on-call is required to report at a fixed time in order for the employer to tell the employee whether or not to come to work, there may be a reasonable basis for the assertion that such a call is working time and the employee is “engaged to wait” at the employer’s request for that two-hour period.