Employees are often asked to carry a pager or cell phone after regular work hours to respond to customer calls or emergencies. Sometimes, the employee is not compensated for the time spent carrying the pager or even for the time actually spent working. It is common practice to pay a set amount per evening or off duty period regardless of how much time is spent responding to calls. In such cases, if the employee has worked a regular forty-hour work week and is a non-exempt employee under the Fair Labor Standards Act, he or she may be losing out on federally mandated overtime wages.
In order to determine if the time spent carrying the pager or cell phone is compensable, you must look at the restrictions placed on the employee’s activities as a result of having to respond to calls. Courts will generally apply a common sense standard and ask whether the employee was engaged to wait, or waiting to be engaged. In other words, if the employee could do little else but stay at home and wait to respond to a call, the time could be compensable. But if an employee is going about his or her regular day and is interrupted by a call, the time spent actually working would be compensable but not the entire time the employee carried the pager or cell phone.
It is important to note that the time may be compensable even if carrying the pager or cell phone was voluntary and not mandated by the employer. Furthermore, it is the employer’s responsibility to keep records of the amount of time spent by employees in responding to calls after-hours, not the employee. If those records to do not exist, courts will draw an inference in favor of the employee’s calculations. Finally, if the employee is successful in claiming unpaid overtime wages, the employer could be liable for the wages, an equal amount in liquidated damages, costs and reasonable attorneys’ fees.
Armour & Co. v. Wantock, 323 U.S. 126, 65 S.Ct. 165, 168 (1944)
Martin v. Ohio Turnpike Comm’s (6th Cir. 1992) 968 F.2d 606, 611
Renfro v. City of Emporia (10th Cir. 1991), 948 F.2d 1529
Pabst v. Oklahoma Gas & Electric Co. (10th Cir. 2000) 228 F.3d 1128
Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)
29 C.F.R. §778.316.
29 U.S.C.A. §211(c).
29 U.S.C.A. §216(b).