In certain occupations, it is necessary to have employees available on call. On-call employees ensure your team is ready to go into work at a moment’s notice or are available by phone to assist in any number of issues that may come up at the workplace.
The question is, when do employers have to pay for on call time and does that time count toward overtime calculations?
Hempfling v. Community Mercy Health Partners
The issue of on-call time, when an employee is due to be paid for such time, and whether their on-call hours count towards overtime, came to light in a recent wage and overtime law case in Ohio.
Judith Hempfling was employed as a nurse by Community Mercy Health Centers. Her official title was “RN Hospice On-Call.” Hempfling worked on call every other weekend for 48 hours, in addition to her regular hours of 4:30 p.m. Wednesday to 8:00 a.m. Thursday. When her position was eventually outsourced and she was let go, she sued Community Mercy Health Partners for overtime pay.
During her hours on-call, she would use her cell phone to communicate with patients or their relatives as well as doctors and labs. It was determined that, on average, she would receive or make 100 telephone calls per weekend she worked. If necessary, Hempfling would also travel to patients’ homes or to the office to conduct work.
Hempfling was paid straight time for all of her hours worked, including those on-call hours worked on the weekend. However, Hempfling argued that she was due to be paid at time and a half for the hours she worked over the standard 40-hour work week. Community Mercy Health Partners, as Defendant in the case, asked the Court to consider whether her weekend on-call work should have been paid time at all, as she was not conducting work the entire 48-hour period.
The Court eventually ruled in Hempfling’s favor and set forth the requirements in determining whether on-call time should be considered time worked and be included in any overtime calculations. The Fair Labor Standards Act requires that employees are paid 1.5 times their normal hourly rate for any hours over 40 hours per week. However, as the Court noted in Hempfling’s case, on-call time does have some exceptions.
If an employer restricts on an employee’s ability to use their on-call time for personal reasons, then those hours will need to be paid and counted towards overtime. For example, if an employee on call is required to stay within 10 miles of their workplace or remain on workplace premises, all hours on call would be compensable hours and count towards any overtime calculations because the employee is severely restricted in their ability to use those hours for personal activities.
In early November 2018, the Court issued its ruling in the Hempfling case and found that there were significant restrictions placed on Hempfling. The Court also stated that because the hospital paid her straight time for all 48 hours of her on-call time worked, the hospital had already concluded those hours were time worked hours, thus she was due to receive overtime for those hours worked over and above 40 hours per week.
What employers need to note from this recent ruling out of Ohio is that if you place restrictions on your on-call employees, you can expect to pay them for all of their time, even if that time is spent off site. If your on-call employees are simply required to be available if called, you are not required to pay them for their time if they are never called upon.
However, for employees like Hempfling, who spend most of their time actively performing work activities or if your on-call employees are required to stay within a certain radius of your workplace or if any other restrictions are placed upon them, be aware that, at least in Ohio, you will be required to pay them for that time and to include it when calculating total hours worked in a week for overtime purposes.