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“On Call” Does Not Equal “On the Clock”

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September 15, 2006

Often, job duties require employees to carry pagers or cell phones and be available in case of an emergency. Employees often feel as though their free time is restricted due to the possibility of being called into work and that times where they are on call should be considered “on the clock.” In a recent decision, the U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over Ohio, Adair v. Charter County of Wayne, 452 F.3d 482 (6th Cir. 2006), declared that this time is not compensable if certain conditions are met.

The plaintiffs were officers for the Wayne County Airport Authority assigned to specialty units. As a condition of their employment, the officers were required to carry pagers that worked statewide and live within a 30-minute drive of the airport.

The officers believed that their on-call time was compensable and filed suit alleging that the airport violated the Fair Labor Standards Act in failing to pay them overtime. The airport responded by requesting that the officers return their pagers. As a result, the officers amended their initial complaint to add allegations of retaliation.

The Sixth Circuit held that determining whether off-duty time is compensable depends upon whether “the employer imposes burdens on the employee so onerous that they prevent employees from effectively using their time for personal pursuits.” The court held that since the pagers worked statewide, the officers were free to travel during their off-duty time. Further, the officers could choose not to return to work if paged, and if they chose to report to work they were paid overtime. In addition, the officers were unable to prove that they received so many calls that they were prevented from effectively using their off-duty time. Additionally, the Sixth Circuit rejected the retaliation claim. The court held that requesting the return of the pagers did not adversely affect the officers.

While the court’s decision in the Adair case was favorable to the employer, it is important for employers to consider whether its on-call procedures prevent employees from using their time for personal pursuits. Important factors to consider include: are the employees forced to report to work when called; how often are the employees called; and how difficult is it for employees to make plans on their days off.

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