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The cost to an employer of an always on call arrangement does not mean that such a system is not cognizable under the Fair Labor Standards Act (FLSA), so long as the on-call time qualifies as work under the relevant FLSA precedents. While one circuit has held that always being on call, while extremely burdensome, does not in and of itself make the on-call time compensable for FLSA purposes, another circuit has found that requiring employees to monitor and respond all day, every day is a factor weighing in favor of compensability. The Tenth Circuit Court of Appeals agrees with both circuits. Although always being on call is not dispositive, such an added burden is relevant in assessing the extent to which all-the-time on-call duty deprives employees of the ability to engage in personal activities.
Plaintiffs were Electronic Technicians in Oklahoma Gas & Electric's ("OG&E") Facility Operations Department. They were on call to monitor OG&E building alarms weekdays from 4:30 p.m. to 7:30 a.m. and twenty-four hours a day on weekends. During these hours, alarms went to computers at the homes of the two plaintiffs, as well as to pagers for all plaintiffs. Plaintiffs were required to respond to the alarms within fifteen minutes, and failure to respond within the time limit was grounds for discipline. Plaintiffs instituted the present action, claiming that the on-call time was compensable under the Fair Labor Standards Act (FLSA). The district court found that plaintiffs received an average of three to five alarms per night, not including pages for security issues. The district court then held that the plaintiffs' on-call time was compensable under the FLSA and awarded them compensation for fifteen hours per weekday and twenty-four hours per Saturday and Sunday, less any hours already paid for responding to alarms. Because it found OG&E's violation was not willful, however, the district court limited recovery to the two-year limitations period. It also refused to award liquidated damages, finding that the FLSA violation was reasonable and in good faith. OG&E appealed the district court's rulings on liability, damages, and prejudgment interest, while plaintiffs cross-appealed the district court's ruling denying liquidated damages and its finding of no willful violation.
Was the plaintiffs’ on-call time compensable under the Fair Labor Standards Act?
The court held that the trial court correctly determined that plaintiffs' on-call time was compensable because the evidence showed that plaintiffs were subject to on-call status during all of their off-premises time. The court declined to reduce the trial court's award of overtime compensation because the court found no clear error in the trial court's factual determinations. The trial court did not abuse its discretion in awarding prejudgment interest because defendant could not claim it did not know of the alleged overtime when it created the on-call policy and the terms under which plaintiffs submitted overtime claims and the trial court correctly calculated the time period for the interest award. The trial court did not abuse its discretion in denying liquidated damages or finding that defendant's violation was not willful because the facts relied upon by the trial court lent at least some support to the trial court's conclusions.