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FLSA2009-17
January 16, 2009
Dear Name*:
This is in response to your
letter requesting an opinion regarding hours worked under the Fair Labor
Standards Act (FLSA)* for on-call employees.
Your client, a Special
Services District (District), is a nongovernmental water company that maintains
the following guidelines for on-call employees:
·
Employees are on-call after normal
working hours. On-call hours are assigned on a rotating basis for a one-week
period. Employees are on-call approximately every eight weeks, and they may
switch schedules with other employees.
·
The District provides the on-call
employee a mobile telephone and a vehicle with necessary tools, should they
need to respond to an emergency.
·
Employees are not restricted to
any location while on-call, but are expected to respond within 45 to 60 minutes
of receiving an emergency call.
The travel time to an
emergency location is approximately 5 to 20 minutes. You state that emergency
calls occur two to five times per month and, on nights on-call employees receive
calls, they typically do not receive more than one call. The average work time
after arriving at the emergency location is five to ten minutes.
We address each of your
questions separately:
Q1. Is the District
responsible for paying an employee for being on-call even if not called to an
emergency?
A1. Whether on-call time
constitutes hours worked depends upon the employee’s ability to use the on-call
time for his or her own purposes. Under 29
C.F.R. § 785.17,
[a]n employee who is required to remain on call
on the employer’s premises or so close thereto that he cannot use the time
effectively for his own purposes is working while “on call.” An employee
who is not required to remain on the employer’s premises but is merely
required to leave word at his home or with
company officials where he may be reached is not working while on call.
From the facts presented, the District does not need to compensate employees while on call.
Employees are on call for a one-week period approximately every eight weeks,
and may switch schedules with other employees. Emergency calls occur two
to five times per month; on nights employees receive an emergency call,
they typically do not receive more than one call.
On-call employees are expected to respond to emergency calls
within 45 to 60 minutes, and the travel time to emergency locations
is approximately 5 to 20 minutes.
Thus, the District’s on-call requirements are not so restrictive as
to constitute hours worked. See Wage and Hour Opinion Letters
August 12, 1997 and November 19, 1985 (copies enclosed).
Q2. Is the District responsible for compensating employees
only for the actual time spent receiving and responding to an emergency call?
A2. As discussed in the
response to your first question, whether employees must be compensated for the
time they are on call is a question of fact that depends upon whether the
conditions are so restrictive or the calls are so frequent that the employees
cannot effectively use the time for personal purposes. From the facts
presented, the District does not need to compensate employees while on call.
However, the time spent on the actual job assignment after responding to a call
must be counted as compensable hours worked. See Wage and Hour Opinion
Letter April 20, 1994 (copy enclosed).
Q3. Is the District
responsible for compensating the travel time of an on-call employee called to
an emergency?
A3. Determining whether
travel time constitutes hours worked depends upon the kind of travel involved.
The principles of travel time are discussed generally in 29
C.F.R. §§ 785.33 - .41. “[I]f an employee who has gone home after
completing his day’s work is subsequently called out at night to travel a
substantial distance to perform an emergency job for one of his employer’s
customers[,] all time spent on such travel is working time.” 29
C.F.R. § 785.36. Therefore, if the employee travels a substantial distance
to an emergency site, the travel time would be compensable. As to the
situations where the employee is called to a regular work site, including a
regular client site, the Wage and Hour Division (WHD) takes no position whether
such time is compensable and therefore, for enforcement purposes, treats such
travel time as not compensable. 29 C.F.R. § 785.36; see Field Operations Handbook §
31c06(b). Cf. Jonites v. Exelon Corp., No. 05-C-4234, slip
op., 2007 WL 2198380, at **6-7 (N.D.Ill. July 30, 2007) (holding that such
travel time is not compensable based in part on WHD’s non-enforcement policy
set forth in FOH § 31c06(b)), aff’d, 522 F.3d 721 (5th Cir. 2008).
This opinion is based
exclusively on the facts and circumstances described in your request and is
given based on your representation, express or implied, that you have provided
a full and fair description of all the facts and circumstances that would be
pertinent to our consideration of the question presented. Existence of
any other factual or historical background not contained in your letter might
require a conclusion different from the one expressed herein. You have represented that this opinion is not sought by a
party to pending private litigation concerning the issues addressed herein.
You have also represented that this opinion is not sought in connection with an
investigation or litigation between a client or firm and the Wage and Hour
Division or the Department of Labor.
We trust that this letter is responsive to your inquiry.
Sincerely,
Alexander J. Passantino
Acting Administrator
*
Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. § 552(b)(7).
*
Unless otherwise noted, any statutes, regulations, opinion letters, or other
interpretive material cited in this letter can be found at
www.wagehour.dol.gov.
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