AELE LAW LIBRARY OF CASE SUMMARIES:
Employment & Labor Law for Public Safety Agencies
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F.L.S.A. - Standby Time
(includes pager cases)
Monthly Law Journal Article: On-Call Duty, 2008 (11) AELE Mo. L. J. 201.
Battalion chiefs in a fire department had responsibility for many administrative tasks. They lacked authority to make direct hiring and firing decisions but conduct performance evaluations and approved vacations. Their suggestions and recommendations on hiring, firing, advancement, or promotion were given “particular weight” They were also required from time to time to serve on “standby” duty and be “on call” from 5:00 p.m. until 8:00 a.m. the following morning for seven days. They sued, asserting claims under the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, seeking overtime. The plaintiffs received 1.5 hours of pay for each day of standby duty, plus overtime pay for hours worked if they were called back to active duty while on standby. The person on standby duty was required to monitor a pager and a radio, answer phone calls, and help handle problems. They were sometimes required to respond to the scene of a fire while on standby duty. A federal appeals court upheld a determination that the plaintiffs were exempt from the FLSA’s overtime pay requirement under the “executive exemption.” There was “ample” evidence that their primary duty was managerial. Holt v. Battle Creek, #18-1981, 2019 U.S. App. Lexis 16561, 2019 Fed. App. 0114P (6th Cir.).
Current and former members of the Chicago Police Department’s Bureau of Organized Crime sued the city, arguing that they were not paid for work they did while off-duty on their mobile BlackBerry electronic devices. The trial court judge concluded that the Bureau did not prevent the plaintiffs from requesting payment for non-scheduled overtime work and did not know that plaintiffs were not being paid for it. A federal appeals court affirmed. The Fair Labor Standards Act, 29 U.S.C. 201, mandates that employers pay covered employees at one-and-a-half times their usual pay rate if they are employed for longer than a certain hourly threshold. They must pay for all work they know about, even if they did not ask for the work, even if they did not want the work done, and even if they had a rule against doing the work. That strict rule “stops short of requiring the employer to pay for work it did not know about and had no reason to know about.” The plaintiffs did not establish the existence of an unwritten policy not to compensate them for off-duty work performed on their BlackBerrys. No one ever told them not to submit timeslips for that work, and no one was ever reprimanded or disciplined for submitting such timeslips. Allen v. City of Chicago, #16-1029, 2017 U.S. App. Lexis 14230 (7th Cir.).
Army emergency
medical technicians and paramedics (EMTs) serving at a military facility in
Georgia were usually scheduled, before October 2012, for 24 hours on-duty,
followed by 48 hours off. After that date, their schedule was changed to two
48-hour workweeks. As they remained at work for more than 40 hours in one week,
they were entitled to overtime under the Fair Labor Standards Act (FLSA). In a
typical biweekly pay period, the government compensated them with basic pay
under the Federal Employees Pay Act (Title 5); annual standby duty premium pay
under Title 5; and FLSA overtime pay for regularly scheduled overtime. Current
and former EMTs filed suit, alleging that the government underpaid them by
using an incorrect formula to calculate FLSA overtime. A federal appeals court
upheld summary judgment in favor of the government. The EMTs received “the
straight time rate of pay times all overtime hours worked” when the government
paid them annual premium standby pay in addition to basic pay. They were are
not entitled to a windfall of also receiving overtime for standby duty as well
as their annual premium standby pay, since the very nature of standby work
meant that they not actively working all hours for which they received pay. Alamo
v. United States, #15-5149, 850 F.3d 1349 (Fed. Cir. 2017).
Under
a state commission wage order, private security guards were entitled to all
on-call hours spent at their assigned worksites while under the control of
their employer. The California Supreme Court therefore reversed a finding that
federal and state regulations allowed the security firm to exclude sleep time
from the plaintiff guard's 24-hour shifts. The court also held that all of the
guards' on-call time constituted hours worked for which they should be
compensated. Mendiola v. CPS Security Solutions, #S212704, 2015 Cal. Lexis 3.
Police officers claimed
that a town's on-call policy for their jobs was so onerous before 2009 that
they had been unable to engage in personal activities between shifts and
should, therefore, have been paid for all time spent on call, rather than just
for calls outs. The Montana Supreme Court upheld a trial court jury verdict for
the town, based on the plaintiffs' failure to demonstrate that the jury's verdict
was inherently impossible to believe or that the verdict was completely
unsupported by the evidence. Stubblefield v. Town of W. Yellowstone Court,
#12-0207, 2013 MT 78, 2013 Mont. Lexis 96
Class action suit raises overtime claims
for thousands of Chicago Police sergeants who were issued mobile PDAs such as
BlackBerry® devices. The complaint alleges that the plaintiff “received
numerous phone calls, e-mails and work orders while off the clock and was not
compensated for the time spent receiving and responding to these
communications” during the preceding two-year period. Complaint, Allen v. City
of Chicago, #1:10-cv-03183 (N.D. Ill.).
Appellate court overturns a decision holding that
Maryland state juvenile transportation officers were not entitled to
compensation under the FLSA and for time spent while on a restrictive on-call
duty. "All the employee witnesses testified that they could not leave the
house without taking the risk that, if paged, they would not be able to respond
within the two-hour response time ..." Hess v. Dept. of Juvenile Services,
#2025, 2008 Md. App. Lexis 166.
Arbitrator denies an overtime claim to an officer who
was ordered to wear a pager while waiting to be called to court. City of
Washington and FOP, FMCS #01/13235, 116 LA (BNA) 686 (Szuter, 2001).
[2002 FP Apr]
OPM issues a final rule on federal firefighter
basic and overtime pay. The new method eliminates standby duty pay and
authorizes overtime for both FLSA exempt and nonexempt firefighters. OPM
Firefighter Pay, 67 Fed. Reg. 15463 (4/2/02).
Off-duty sheriff’s deputies who must wear pager every
10th week were not entitled to overtime compensation. Ingram v. Co. of Bucks,
1997 U.S. Dist. Lexis 5317, 3 WH Cases2d (BNA) 1611 (E.D.Pa.). [1997 FP 119-20]
Federal appeals court strikes down overtime suit
based on employee's claim he had to stay within the reception range of his
pager. Sarmiento v. City of Denver, 1996 U.S.App. Lexis 7562, 82 F.3d 426
(Unpub. 10th. Cir.). [1997 FP 56]
Article: “The impact of electronic paging and
on-call policies on overtime pay under the FLSA,” 11 (2) The Labor Lawyer (ABA)
231-246 (Summer 1995).
On-call time was not compensable where the
employee is interrupted only several times a week and could travel in a 30-mile
radius. Paniagua v. City of Galveston, 995 F.2d 1310, 1993 U.S. App. Lexis
18581 (5th Cir. 1993). {N/R}
Restrictive standby time was compensable in
Kansas; double damages awarded to firefighters. Renfro v. City of Emporia, 948
F.2d 1529 (10th Cir.). [1993 FP 8-9]
Whether standby periods are compensable depends
on whether the employee can "effectively use the time" while under
subpoena, and waiting to see if and when he will be called to testify in court.
If officers are “engaged to wait” the time is compensable; if they are “waiting
to be engaged” it is not compensable. Thompson v. City of Canton, #5:90CV1558
(N.D.Ohio 1992). {N/R}
Standby time was not overtime, although
firefighters were required to wear beepers, where callbacks averaged 3 per
month per firefighter. Clay v. City of Winona, 753 F.Supp. 624 (N.D. Miss.
1990). {N/R}
Federal jury awards members of bomb squad 12 hours
overtime pay for each 24-hour period of on-call status. Dornbos v. O'Grady,
1990 WL 179711 (N.D. Ill. 1990).
Restrictive standby time was compensable in
Kansas; double damages awarded to firefighters. Renfro v. City of Emporia, 948
F.2d 1529 (10th Cir. 1991).
Taking phone calls at home is work time, compensable
at overtime rates. Staying at home in case the phone rings is
"standby" time, and although compensable, is not "work
time" at overtime rates. Hickey v. State of Kansas Corp. Cmsn., 765 P.2d
1108 (Kan. 1988).
Maine Supreme Court holds that EMT stand-by time was
not compensable overtime, despite minimal restrictions. Crook v. Russell, 532
A.2d 1351 (Me. 1987).
Appeals court holds that on-call periods are not
working time; jury award for overtime reversed. Goff v. City of Airway Heights,
725 P.2d 997 (Wash. App. 1986).
Highway patrolmen lose suit over pay claim for
standby duty and court appearances; collective bargaining is proper remedy.
Sullivan v. State Board of Control, 225 Cal.Rptr. 454, 176 Cal. App. 3d 1059.
Kansas firefighters win pay for "stand-by
time" claims; on-call status was unduly restrictive. Renfro v. City of
Emporia, 729 F.Supp. 747 (D. Kan. 1990).
Highway patrolmen lose suit over pay claim for
standby duty and court appearances; collective bargaining is proper remedy.
Sullivan v. State Bd. of Control, 225 Cal.Rptr. 454, 176 Cal.App.3d 1059.
Fire Dept. photographer who was on call 24-hours
a day, was not entitled to be paid for standby time. Back pay award of $586,876
reversed by appeals court. City of Dallas v. Spainhouer, 758 S.W.2d 611 (Tex.
App. 1988).
Washington Supreme Court sets out when “on call”
periods constitute work time, entitling employees to overtime pay; degree of
restrictions on personal life is usually controlling. Deputy Sheriff's Assn. v.
Chelan Co., 109 Wash.2d 282, 745 P.2d 1 (1987).
Maine Supreme Court holds the EMT stand-by time
was not compensable overtime, despite minimal restrictions. Crook v. Russell,
532 A.2d 1351 (Me. 1987).
Non-resident employees forced to remain in town
on standby duty entitled to overtime pay; payment to residents excused. Kearny
PBA Local 21 v. Town of Kearny, 388 A.2d 265, 159 N.J. Super. 402 (A.D. 1978).
Department not required to pay overtime for
standby duty. Spellman v. Fiscal Court of Jefferson County, 574 S.W.2d 342 (Ky.
App. 1978).
Wisconsin officers lose back pay awarded for
"yellow alert" duty; stand-by time at stationhouse and home
distinguished. Theune v. City of Sheboygan, 226 N.W.2d 396 (Wis. 1975).
Standby Time discussed. Hogan v. Kansas City, 516
S.W.2d 805.
Article: "The impact of electronic paging and on-call policies on overtime pay under the FLSA," 11 (2) The Labor Lawyer (ABA) 231-246 (Summer, 1995).
Article : E. Randels, Esq., “The Fair Labor Standards Act: An Administrative Nightmare.” 59 (5) Police Chief (IACP) 28-32 (May 1992). Discusses in-shift meal periods, and standby on-call time.
See also: Overtime Pay Claims; Pay Disputes.