Suit Alleging All Day/Every Day On-Call Duty Fails FLSA Claim

By Debbie Tam

The U.S. Court of Appeals for the Tenth Circuit ruled that an employee who claimed to be on-call seven days per week for 24 hours was not compensable under the Fair Labor Standards Act (FLSA) due to the fact the employee’s activities were not restricted that the time could not be used for personal reasons (Barnes v. Omnicell, CA10, Dkt. No. 23-1336, 5/28/2024).

On-call time.

Larry L. Barnes was employed by Omnicell as a Technical Service Engineer (TSE). As a TSE, Barnes was responsible for the repair, monitoring, and maintenance of Omnicell products, including providing repair services for vending-type machines that dispense medication and/or medical equipment. TSEs were required to make on-site visits within six hours of an urgent problem being reported by a hospital or healthcare provider. However, non-urgent problems may be scheduled days later after being reported. Barnes worked remotely from his home in Pine, Colorado and generally worked at least eight hours per day. He slept with his cell phone beside him but received very few service calls at night. Omnicell paid Barnes 40 hours per week and additional wages at time and one-half for any overtime hours. Barnes was on-call when not working his 40-hour workweek. Any work performed during on-call time was logged in and he was paid for the additional hours. While on call, Barnes was free to spend his time as he wished as long as he responded to a call within one hour of notification. Barnes alleged that Omnicell owed him $2 million in wages for unpaid on-call time because he was on-call seven days per week for 24 hours per day.

FLSA regulation, 29 CFR 785.17, states that an employee who is required to remain on call on the employer’s premises, or so close thereto that they cannot use the time effectively for their own purposes, is working while “on-call.” An employee who is not required to remain on the employer’s premises but is merely required to leave word at their home or with company officials where they may be reached is not working while on call.

Court affirms district court ruling.

The federal appellate court examined the frequency of callbacks and the need to be ready for duty. For example, in Renfro v. City of Emporia, 948 F.2d 1529, 1537-38 (10th Cir. 1991), this court determined on-call time was compensable for firefighters due to the restrictive conditions that included a requirement to callback within 20 minutes or be subject to discipline. However, in the case of Barnes, the frequency of callbacks was not restrictive. Barnes was “waiting to be engaged,” because he could engage in personal activities while waiting to be called for work. Also, Barnes was not required to respond immediately to calls and had up to six hours to respond to even urgent requests. Barnes also fails the readiness test of a firefighter who is required to respond to an emergency immediately for the safety of a community. While the court acknowledged that Barnes’ activities were somewhat restricted while on-call, the restrictions were not so prohibitive that the time was predominantly for the employer’s benefit. The federal appellate court affirmed the district court ruling.

The Tenth Circuit Court of Appeals covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah plus those portions of the Yellowstone National Park extending into Montana and Idaho.