The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
Employers operating in New Hampshire face unique wage compliance challenges during the Granite State’s harsh winters. The last several months have brought challenging weather and lingering questions about how to compensate employees who must remain on-call outside regular working hours to be ready to respond to these weather-related emergencies. This issue is particularly relevant for public employees tasked with snow removal and storm management, as well as first responders who experience increased calls and emergency situations during winter storms and subsequent accidents.
State and federal laws require employers to pay non-exempt employees at least the minimum wage for all “hours worked.” When an employee is actually called in and performs work, that time is clearly compensable. However, determining whether time spent “on-call” but not actively performing work constitutes compensable “hours worked” requires a fact-specific, case-by-case analysis.
The Department of Labor’s (DOL) regulations under the Fair Labor Standards Act (FLSA) provide that on-call time is generally not compensable if employees are not required to remain on the employer’s premises and can effectively use their time for personal pursuits. This remains true even if employees must carry a cellphone, refrain from drinking alcohol, or report within a reasonable time.
While no single factor is dispositive, other relevant considerations include the employee’s ability to leave home, the frequency and nature of calls, flexibility to trade shifts with other employees, restrictions on personal activities, geographic limitations on the employee’s location, response time requirements, and whether the employee actually engaged in personal activities during on-call periods.
For example, in a 2018 Opinion Letter, the DOL concluded that on-call hours were not compensable even where first responders were required to carry a pager, abstain from alcohol and other substances during the period, and expected to arrive within five (5) minutes of a call. The rationale was that the ambulance service operated in a small city where travel within city limits only took several minutes and employees were not required to remain at or near the ambulance garage or even at home during on-call hours. The DOL also noted that the reasonableness of the response time was supported by the employer’s policy to not discipline employees for arriving within eight (8) minutes of the call.
However, time spent “on-call” becomes compensable if the restrictions on employees are so burdensome—or the call-backs so frequent—that employees are effectively prevented from using the time for their own purposes. The DOL has determined that on-call time is not so restrictive as to constitute “hours worked” where employees receive an average of five (5) calls per week or experience call-backs up to twenty-three percent (23%) of the time. Conversely, courts have found on-call time to be compensable where employees respond to an average of three (3) to five (5) (or more) call-backs per on-call shift on the rationale that such frequency prevents employees from effectively using the time for personal pursuits.
Whether on‑call time qualifies as compensable “hours worked” may depend on the season or the specific circumstances involved. Employers should therefore evaluate whether call volume typically increases during the winter months when reviewing their on‑call policies. As a best practice, employers should clearly communicate expectations to on‑call employees, particularly during these busier periods of the year.
Finally, county and municipal employers may opt to provide stipends or minimum call-back pay to encourage their employees to assume on-call responsibilities. It is worth noting that, for most other employers, RSA 275:43-a requires that any employee who is called in to work receive at least two (2) hours of pay for reporting, but that this law excludes municipal employers. Regardless of whether the employer opts to provide pay incentives, offering such incentives does not change the character of the on-call period itself, nor does it automatically render that time spent waiting to be called compensable under the FLSA.
Employers concerned about potential wage claims should review their on-call policies and consult legal counsel to ensure compliance and minimize risk.
This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.