In Roland v. Unity Limited Partnership  a federal district court described the elements of a hospital on-call policy that complied with the Fair Labor Standards Act (FLSA), even though it did not pay minimum wage for nurses’ on-call time unless they performed actual work duties.   

Nurses previously employed by Unity Limited Partnership (“Unity”), a partnership of three Wisconsin-area hospitals, providing home palliative and hospice-style care, claimed the hospitals violated the FLSA by failing to compensate them properly for all of their on-call time.  Unity’s on-call policy required nurses to: (1) carry a cell phone and a pager; (2) remain within the nurse’s service area (a radius of 30 or 35 miles); (3) return a call or a page within 15 minutes; and (4) refrain from drinking alcohol.  Unity paid nurses $2.00 per hour for on-call time. In addition, they were paid time and a half for overtime when they actually performed work while on call. The nurses claimed that the policy limited their ability to engage in personal or social activities such as doing household chores, shopping, going to dinner with friends, drinking alcohol, or attending family events out of town, and that they therefore should have been paid minimum wage for all on-call time. 

The court rejected the plaintiffs’ claims and granted summary judgment to Unity.  The court held that the operative test in determining the compensability of on-call time is “whether the employee can use his time effectively for personal pursuits – many of them, not necessarily all of them.”  In applying this test, the court found that the plaintiffs were not restricted in their ability to engage in personal activity requiring compensation under the FLSA because: (1) they averaged less than one call per 14-hour shift; (2) many calls did not require that they travel to make a patient visit; (3) they were able to move about in a very large radius; and (4) they had a reasonable amount of time to return calls.  In fact, the court noted, “[A]lthough there is no doubt that there were some meaningful restrictions on the Plaintiffs’ ability to engage in their personal pursuits, many of the Plaintiffs’ key complaints appear to be the product of their own subjective reactions to the on-call regime rather than requirements of that regime. . . . If one has to cut short a trip to the store every once in a while, that is hardly a reason to forgo even trying to go shopping.” (emphasis in the original)

Generally, whether employees must be paid for on-call time depends on the facts of the situation and how much freedom an employee has while on-call.  This district court decision provides a useful framework, within the healthcare context, to assist healthcare employers in evaluating their own on-call policies. In addition, while this case involved only two plaintiffs asserting individual claims, cases like this alleging that a compensation policy or practice violates the FLSA or state wage laws are now more typically brought as collective and/or class actions on behalf of all employees subject to the same policy, raising the stakes considerably.

This entry was written by Edward H. Chyun