On-Call or Waiting? Understanding When Standby Time Counts as Paid Work Under the FLSA
On-Call Time and Waiting Time: Compensability Rules Under the FLSA
On-call time and waiting time sit at the core of “hours worked” under the Fair Labor Standards Act (FLSA). The governing question is whether the employee is primarily for the employer’s benefit during a period of constrained availability. If so, the time is typically compensable and counts toward minimum wage and overtime. If not—i.e., the worker remains largely free to use the time for personal pursuits—the time is generally non-compensable. This article distills the practical tests, common gray zones, and internal-control playbook for employers and counsel.
One-liner: If restrictions during on-call/waiting time substantially limit personal use of the time, pay it; if the employee is free enough to live normally and only responds when called, it’s usually not paid—but the response work itself is always paid.
Core legal tests in plain English
“Engaged to wait” vs. “waiting to be engaged”
Employees are engaged to wait when inactivity is an inherent part of the job and they must stay ready (e.g., a driver waiting for loads with the truck, a technician sitting at a site awaiting alarms). That time is typically compensable. By contrast, employees are waiting to be engaged when they are free to use the time substantially for themselves (e.g., remain at home, run errands, watch a movie) and only need to respond if called—usually non-compensable until the call arrives.
On-call conditions that tilt toward compensability
- Short response windows (e.g., 10–15 minutes) that require staying close to the workplace.
- Frequent call-outs that materially interrupt personal time (e.g., multiple pages per evening).
- Geofencing/radius limits that prevent normal activities (e.g., must remain within 1–3 miles).
- Prohibitions that significantly restrict life choices (e.g., no social events, no childcare, no alcohol at home).
- Required presence at the worksite or in a designated vehicle/location.
Conditions that favor non-compensability
- Reasonable response time (e.g., 30–60 minutes) allowing normal local activities.
- Infrequent calls (e.g., a few per week/month) and the freedom to trade shifts.
- No location mandate; employee may remain at home or anywhere with cell coverage.
- No lifestyle bans beyond fitness for duty at response (e.g., moderate alcohol rules consistent with safety laws).
Gray zone tip: The same rule can flip with volume and pattern. An “occasional” call that becomes nightly will convert otherwise non-compensable on-call time into paid waiting time.
Waiting time at the worksite
If employees must stay on premises (or so close they cannot use the time effectively for themselves), the idle time is usually paid. Examples: security officers between rounds; production operators during material changeovers; field crews parked at a job site awaiting clearance. If employees are released and may leave until work resumes at a set hour, the interim is generally unpaid (travel rules aside).
Related rules: rest/meal periods and sleep time
- Short rests (~5–20 min) are ordinarily paid and counted toward hours worked.
- Bona fide meal periods (~30+ min) are unpaid only when the employee is fully relieved of duty (no monitoring phones/alerts).
- Sleep time may be excluded for duty tours of 24 hours or more when adequate sleeping facilities and an uninterrupted opportunity to sleep are furnished (rules are narrow; document clearly).
Public sector & emergency services notes
Fire/EMS/police often have unique on-call structures and CBAs. Mandatory station-house standby is commonly paid; at-home on-call can be unpaid if response windows and call frequency allow normal life. The actual response (turnout, drive, scene work, reporting) is always compensable.
Practical continuum of restrictions (illustrative)
Documentation and policy architecture
Define the on-call package
- Eligibility & compensation: stipend vs. hourly; call-out minimums (e.g., 2-hour minimum per response).
- Response parameters: time to acknowledge and to arrive; acceptable locations; phone/data requirements.
- Rotation & coverage: equitable assignment, swap rules, escalation paths, backup tiers.
- Recordkeeping: method to capture actual work during a call (from alert to release) and travel time if driving to site.
Controls that withstand audits
- Measure call frequency and response durations; if frequency rises, reassess compensability.
- Set reasonable response windows (30–60 minutes where safety allows) to preserve non-compensable status.
- Avoid excessive restrictions (tight radius, blanket alcohol bans) unless safety/regulators require them—tight limits push toward paid time.
- Use technology (paging apps, IVR, ticketing) to timestamp requests, acknowledgments, and resolution for accurate pay.
- Clarify meal/rest treatment during on-call duty tours; “must monitor phone” generally means paid for that period.
- Train supervisors not to demand off-the-clock triage via text; if substantive work occurs, record and pay it.
Internal audit checklist: (1) Policy defines response time/location; (2) Logs show calls per shift and duration; (3) Pay rules grant call-out minimums; (4) Meal/rest fully relieved?; (5) Travel time paid when required to site; (6) Stipend structure reviewed annually; (7) Variances documented and approved.
Travel, remote triage, and mixed scenarios
- Remote fixes (VPN, phone) are hours worked from start of triage to resolution/logging. Multiple short calls accumulate toward overtime.
- Required site travel from home is typically paid from the moment the employee departs in response (home-to-work exceptions are narrow in emergency call-out contexts).
- Multiple employers/clients: allocate time to the controlling employer for whom the response is made; avoid double-counting across entities.
Exposure and remedies overview
Back-pay risk emerges when on-call periods were treated as unpaid but practical restrictions functioned like standby duty. Look-backs commonly span two years (three if willful), plus liquidated damages and fees. Prospective fixes—reasonable response windows, accurate call logging, and fair call-out minimums—dramatically shrink exposure.
Communication capsule for employees: “On-call means you are free to use your time, subject to responding within X minutes. When you begin responding, all time spent diagnosing, traveling (if required), fixing, documenting, and debriefing is paid. If call frequency or limits prevent normal personal activities, tell HR so we can re-evaluate compensability.”
Conclusão
Whether on-call/waiting time is paid hinges on practical freedom. Write policies that preserve that freedom where appropriate, capture actual response work minute-for-minute, and re-validate your assumptions as call patterns evolve. Done well, you will compensate fairly, reduce litigation risk, and keep coverage reliable for customers and public safety alike.
Quick Guide — On-Call & Waiting Time (FLSA)
- Core test: Is the employee’s time primarily for the employer’s benefit? If restrictions materially limit personal use of time, it’s generally compensable.
- On-premises standby is usually paid; at-home on-call is unpaid unless tight limits/frequent calls curb normal life.
- Response work (acknowledge, triage, travel if required, fix, document) is always paid minute-for-minute.
- Drivers/crews waiting with equipment are commonly “engaged to wait” ⇒ paid.
- Reasonable response windows (≈30–60 min) and low call volume support non-compensable on-call.
- Meal/rest: paid if not fully relieved; short breaks (5–20 min) are paid.
- Controls: clear policy, call logs, call-out minimums, supervisor training, periodic audits.
FAQ
1) When is at-home on-call paid?
When restrictions (tight radius, 10–15-minute response, frequent interruptions, alcohol/activity bans) significantly limit personal pursuits. Otherwise, only the actual response work is paid.
2) Does merely carrying a phone/pager make time paid?
No. Passive availability with a reasonable response time is typically non-compensable until the employee begins working on the issue.
3) Is waiting at the job site compensable?
Generally yes. If required to remain on premises or so close that the time cannot be used effectively for oneself, the idle time counts as hours worked.
4) How do we pay remote triage?
From the moment the employee starts diagnosing/replying until resolution and documentation. Multiple short calls aggregate toward overtime.
5) Is travel from home to site during a call paid?
Usually yes for emergency call-outs once the employee departs in response; record start/arrival times. (Ordinary home-to-work commuting remains non-compensable.)
6) Can a stipend replace hourly pay for responses?
Stipends may cover availability, but actual work time must still be tracked and paid (including overtime) if compensable thresholds are met.
7) What about sleep time on long tours?
For 24-hour+ tours, limited sleep time may be excluded only if adequate facilities and a real opportunity to sleep exist and interruptions are minimal; document in writing.
Operational Legal Backbone — Authorities & Plain-English Takeaways
- FLSA (29 U.S.C. §201 et seq.) — “hours worked” and overtime framework; liquidated damages for underpayment.
- Portal-to-Portal Act (29 U.S.C. §254) — clarifies preliminary/postliminary exclusions, not a blanket on-call carve-out.
- 29 C.F.R. Part 785 — key sections:
- §§785.14–.17: waiting/on-duty vs. off-duty; “engaged to wait.”
- §785.18–.19: rest and meal periods.
- §785.20–.23: meetings, lectures, training; duty of 24 hours or more (sleep time).
- 29 C.F.R. Part 790 — interpretive guidance on hours worked/Portal-to-Portal boundaries.
- Leading cases:
- Armour & Co. v. Wantock, 323 U.S. 126 — time is compensable if constraints make it predominantly for the employer’s benefit.
- Skidmore v. Swift & Co., 323 U.S. 134 — totality-of-circumstances test; agency interpretations get persuasive weight.
- Owens v. Local No. 169, 971 F.2d 347 (9th Cir.) — factors for at-home on-call (response time, frequency, degree of freedom).
- Public safety nuances (fire/EMS/police) — CBAs and statutory schemes may specify standby rules; station-house standby commonly paid.
Final considerations
Write policy around practical freedom, not labels. Preserve non-compensable on-call by setting reasonable response windows and minimizing lifestyle bans; conversely, where restrictions are tight or calls are frequent, treat time as paid. Always track and pay the response itself, including travel if required. Validate with logs, review quarterly, and retrain supervisors to avoid off-the-clock texting or triage.
Important notice: This material is educational and does not replace individualized legal advice. On-call compensability is fact-specific and may vary by circuit, CBA, or public-sector statute. Before changing pay practices, consult qualified counsel and document your business justification and timekeeping model.