According to the Department of Labor (DOL), an employee who is required to
remain on call on the employer's premises and is therefore deemed to be
"working" on call. An employee who is required to remain on call at
home or who is allowed to leave a message where he/she can be reached is not
working (in most cases) while on call. However, additional constraints on the
employee's freedom could require this time to be compensated.
The terms "working" and "not working" are synonymous
with "eligible to be compensated" and "not eligible to be
compensated." Therefore, the location of the employee while on call (i.e.,
whether he or she is on work premises or at home) is the main consideration
that goes into whether compensation can be expected. However, this is not the
only consideration.
The issue of what constitutes an additional constraint on an employee's
freedom is also a critical consideration. If an employee is able to
"engage in personal activities" while on call away from premises, the
on-call time will likely not be compensated. If, on the other hand, an employee
receives so many calls that he or she cannot "finish a meal, read a story
to his or her child or read a newspaper," then there is a good chance the
employee will need to be compensated for his or her on-call
responsibilities.
Disagreements as to whether an employee is "on call" can result in
wage and hour liability claims.