Vision Payroll

The US Department of Labor (DOL) recently issued Administrator signed Opinion Letter FLSA2009-7. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Because the letter was apparently never mailed after it was signed, the DOL under new Secretary Hilda L. Solis has decided to withdraw the letter for further consideration. Therefore, this letter may not be relied upon as a statement of agency policy. It is possible that a different conclusion may be reached when the Opinion Letter is reissued.

In this Opinion Letter, a county ambulance service requires its employees to be on-call approximately forty hours per week. On-call employees must carry a pager, respond in uniform within five minutes, and abstain from alcohol and other substances. Over a test period of two months, the typical on-call employee responded twelve or thirteen times in a month.

Generally, on-call time is compensable when the restrictions are too burdensome or callbacks are too frequent to allow employees to use the on-call time freely. The DOL concluded that since the town was small enough that employees could travel anywhere in town and still be able to respond in the allotted time, since on-call employees were not disciplined even when taking as long as eight minutes to respond, and since the number of callbacks was not too frequent, employees had effective use of the on-call time for personal purposes and were not required to be compensated (other than time spent on call-backs).

State laws may provide rules that are more beneficial to the employee and must be followed. The DOL may come to a different conclusion when it reissues the Opinion Letter after further consideration. Contact Vision Payroll if you have questions about this Opinion Letter.

The US Department of Labor recently issued non-Administrator signed Opinion Letter FLSA2008-8NA. Although Opinion Letters only apply to the exact set of facts and circumstances presented in each case, they are a valuable aid in understanding current interpretations of the Fair Labor Standards Act (FLSA). Unlike signed Opinion Letters, unsigned Opinion Letters do not “provide a potential good faith reliance defense for violations of the FLSA.” This Opinion Letter discusses whether on-call time is compensable under the FLSA. A non-profit ambulance rescue service requires employees to be on-call from 6 am to 8 am and from 4 pm to 6 pm five days a week. The employee uses a pager while on-call and must respond to call with the ambulance within eight minutes. The question to be answered is whether the employee is “engaged to wait” (compensable) or “waiting to be engaged” (non-compensable). During the winter months, when there is an average of one call every four hour shift, the frequency of calls along with other factors mandated that the employees be compensated for their time. During the non-winter months, when calls were usually zero, one, or two per week, the on-call time would be non-compensable. State laws may provide rules that are more beneficial to the employee and must be followed. Contact Vision Payroll if you have questions about this Opinion Letter.