You May be Underpaid for On Call Time
Under the Fair Labor Standards Act (FLSA), on-call employees in Montana may be entitled to the payment of wages for all the time that an employee is on call. The United State Supreme Court has held that time spent waiting “on call” is compensable if the waiting time is spent “primarily for the benefit of the employer and his business.” Armour & Co. v. Wantock, 323 U.S. 126, 132, 65 S.Ct. 165, 89 L.Ed. 118 (1944). “Whether time is spent predominately for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case.” Armour & Co., 323 U.S. at 133, 65 S.Ct. 165. The key, according to the Court, is whether the employee was engaged to wait, which is compensable, or whether the employee waited to be engaged, which is not compensable. Skidmore v. Swift & Co., 323 U.S. 134, 137–39, 65 S.Ct. 161, 89 L.Ed. 124 (1944). While these buzzwords are routinely thrown out by the courts, what do they really mean?
What Montana Courts consider to decide if Montanans should be paid for on-call time
Factors Montana courts will consider in determining whether on-call time is compensable include: (1) the extent to which there was an on-premises living requirement; (2) the extent to which there were excessive geographical restrictions on employee movements; (3) the extent to which the frequency of calls was unduly restrictive; (4) the extent to which a fixed time limit for on-call response was unduly restrictive; (5) the extent to which employees could easily trade on-call responsibilities; (6) the extent to which the use of a pager or cell phone could ease restrictions; (7) the duration and danger of calls; (8) the extent to which employees benefitted financially from the on-call policy; (9) the extent to which the policy was based upon an agreement between the parties; and (10) the extent to which on-call employees engaged in personal activities during on-call time. Stubblefield v. Town of W. Yellowstone, 2013 MT 78, 369 Mont. 322, 327-28, 298 P.3d 419, 424. If you believe you are entitled to on-call time, contact an Montana employee rights attorney.