It depends on how restricted the employee is. What “restricted” means: Under the FLSA (29 CFR 785.17), on-call time at home is compensable only when the restrictions are so burdensome that the employee cannot use the time effectively for personal purposes.
The framework is "engaged to wait" (which is compensable or needs to be paid) versus "waiting to be engaged" (not compensable or unpaid). Courts use a totality-of-circumstances test.
The factor-by-factor test
- Response time: if the employee is expected to respond in a very short time (15 minutes or less), it leans compensable. If the worker is given a more reasonable time (30 to 60+ minutes), it leans non-compensable. Rough dividing line: around 45 minutes
- Geographic restrictions: If employees are forced to stay within a few blocks of the worksite, it leans compensable, but if they can go anywhere as long as they can get back in time, it leans non-compensable
- Call frequency: frequent calls (4-5+ per shift) that interrupt personal time lean compensable, but infrequent (1-3 per week) leans non-compensable
- Ability to trade on-call: if they are strictly required to be the one who answers with no option to trade, the company is controlling their time (compensable), but if an employee can easily swap their on-call shift with a colleague, it leans non-compensable
- Activity restrictions: cannot drink alcohol, must monitor a radio or laptop, cannot leave home leans compensable, but free for normal activities leans non-compensable
- Consequences of a missed call: discipline or termination leans compensable, but no adverse consequences leans non-compensable
The more factors deemed compensable time, the stronger the case that the time is hours worked. The same employee can have different on-call arrangements at different times. Employers typically rely on the DOL Fact Sheet #22 as a starting point.
Industry examples
- Healthcare: a nurse required to respond within 10 minutes with 5+ calls per shift is almost certainly compensable
- IT support: a sysadmin with a 30-minute response time and 1 to 2 calls per week is likely not compensable
- Property management: an on-site manager required to stay on the property and respond to emergencies is compensable
California's stricter rules
California uses a broader "control" test with eight factors. On-call time at the worksite is always compensable, and on-call hours count toward California's daily overtime threshold (8 hours) as well as the weekly one (40 hours). Employers can pay a lower on-call rate, but not below minimum wage.
Disclaimer:
This article informs. It does not advise on the law. California is stricter than the FLSA. Other states may differ.
TL;DR
- On-call at home is compensable when restrictions are heavy enough that the employee cannot use the time freely (short response times, geographic limits, frequent calls, activity restrictions).
- When the employee can go about normal life and calls are rare, it is generally not compensable. Rough dividing line: around 45-minute response time.
- California is stricter: on-site on-call is always paid, and hours count toward daily overtime.