Does on-call time count in determining FMLA eligibility?
Issue:

One of your employees is seeking FMLA and you are tasked with determining if she has met the threshold service-hour requirement. This employee is often required to be “on-call” meaning that during such reserve-duty time, she must be within one hour of reporting to work after being called. Does this time count toward the hours of service needed for FMLA eligibility?

Answer:    

No. According to the Tenth Circuit Court of Appeals, on-call time did not count in determining eligibility for FMLA leave because the time was not considered “compensable hours of work” according to the principles of the Fair Labor Standards Act (FLSA). The test is whether the time is spent predominantly for the employer's benefit or for the employee's.

Relevant factors include:

  • the terms of agreement between the parties;
  • the nature and extent of the restrictions;
  • the relationship between the services rendered and the on-call time; and
  • all surrounding circumstances.

Where the employee is not required to remain on the employer's premises, the critical inquiry is whether the employee is able to use the time effectively for his or her own purposes. Here, the report requirement necessarily entailed that the employee could not drink alcohol, must be able to dress in uniform, and must be able to travel to the airport, park, and pass through security within one hour of a call. She was not able to make or attend doctors' appointments for herself or her children, do her weekly shopping, nor go on field trips with her children.

The court compared these circumstances with many FLSA cases presenting similar, or even more restrictive, circumstances involving availability by pager, inability to drink alcohol, and ability to report within 30 minutes or one hour. In the FLSA cases, it was determined that the employees' activities were not so curtailed as to require the on-call time to be considered compensable working time. The court followed this precedent.

Additionally, the court held that the fact that the employer was required to pay the employee a guaranteed minimum for reserve-duty time was not the only factor to be considered, and did not necessarily require on-call time to be considered hours worked where other factors indicated that the on-call time should not count as hours of service for FMLA eligibility.

Finally, the court refused to apply the regulation providing that an employer that has confirmed an employee's eligibility for FMLA leave may not retroactively claim that the employee was not FMLA-eligible. The court followed the circuit courts, which have held that the regulation is contradictory to the plain terms of the FMLA, as it awards FMLA leave to employees who do not statutorily qualify for FMLA protection.

The court therefore upheld the grant of summary judgment for the employer.

Cite: Knapp v. America West Airlines, (10thCir 2006) Dkt. No. 05-4322

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