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Is it legal to be on call without receiving compensation?

Friday September 11, 2009
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Question:

Dear Nancy,

I have an RN friend who is 70-plus years old, and she is employed in a long-term care facility. She has been told she must put herself down for three extra 12-hour shifts a week in addition to her full-time, 12-hour shifts. She has been told she is to be “on call” for these three extra shifts, but she is not getting any compensation for being available on these three extra days. Is this legal? They have advised her they will let her know by 5 p.m. whether they need her, but they have called her as late as 8 p.m. to come in, stating that she still is “on call.” I cannot believe this is allowed.

Keith



Nancy Brent replies:

Dear Keith,

The Fair Labor Standards Act (FLSA) and the Wage and Hour Division of the US Department of Labor regulate compensation for “on call” duty. Generally speaking, if an employee who is required to be “on call” is present at the worksite “waiting” for a call to duty, he or she is considered working and therefore must receive pay for that time. In contrast, if an employee is not at the worksite, and therefore able to use the “waiting time” for his or her own purposes until, and if, a call for duty occurs, the time “waiting” is not considered hours worked for which pay is required.

These guidelines are, of course, general, so your friend may want to contact the state department of labor in the state in which she works to determine if her situation fits into these guidelines. A consultation with a nurse attorney or attorney might also be of benefit if your friend does not obtain a satisfactory response from the state department of labor.

Your friend also can do some research on this topic by going to www.dol.gov/esa/whd/flsa. Scroll down the page to “Hours Worked” and click on that link for information on the on-call duty pay issue and other aspects of hours worked as interpreted by the FLSA. Also, putting “Fair Labor Standards Act” into her search bar will yield additional references and resources for her review.

Cordially,
Nancy




Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.