Key Takeaways
- The Question Is How Restricted You Are: Under federal regulation, an employee required to stay on the employer's premises — or so close that the time can't be used effectively for their own purposes — is working while on call, while someone merely required to leave word where they can be reached is not: 29 C.F.R. § 785.17. The Supreme Court framed the same idea in 1944 as the difference between being engaged to wait and waiting to be engaged.
- An Oklahoma Employer Has Already Lost This Fight: In Pabst v. Oklahoma Gas & Electric Co., 228 F.3d 1128 (10th Cir. 2000), technicians who fielded three to five alarms a night on a ten-, later fifteen-, minute response clock won compensation for their entire on-call periods — nights and weekends included — and the court of appeals affirmed.
- Unreported Hours Are Not Automatically Lost: Pabst rejected OG&E's argument that it lacked knowledge of duties imposed by its own on-call system. The workers' failure to claim hours the company had classified as unpaid did not defeat recovery. Employer knowledge still matters; keep accurate records and report your work.
Being on call does not automatically make your evening paid work. For employees covered by the federal Fair Labor Standards Act, the key question is whether the restrictions leave that time meaningfully your own. Carrying a phone and remaining reachable is usually not enough. Frequent calls, short response deadlines, and restrictions that keep you home can change the answer. In one Oklahoma case, technicians proved that entire nights and weekends counted as work, not just the minutes spent answering alarms.
This article is general legal information, not legal advice. On-call cases are intensely fact-specific, and whether your arrangement crosses the line requires case-by-case review.
The Federal Rule: Engaged to Wait, or Waiting to Be Engaged?
The Fair Labor Standards Act (FLSA) sets minimum-wage requirements and generally requires overtime pay after forty hours in a workweek for covered, nonexempt employees. Whether on-call time counts as hours worked comes before calculating what is owed. Exemptions and special rules can change the result; a salary alone does not settle the question. An agreement to pay an on-call stipend is another issue, even when the waiting time does not count as work under federal law.
Two Supreme Court decisions issued the same day in 1944 supply the basic waiting-time distinction.
In Armour & Co. v. Wantock, 323 U.S. 126 (1944), private fire guards at a Chicago soap plant stayed overnight in a company fire hall, playing cards, listening to the radio, and sleeping, but had to remain on the premises and answer alarms. The Supreme Court affirmed a judgment counting idle standby time as work. The lower court had excluded sleeping and eating time, and the employees had not appealed that exclusion; the decision is not a blanket rule that those periods are always unpaid. Justice Jackson explained at page 133 that an employer "may hire a man to do nothing, or to do nothing but wait for something to happen." Whether standby time is work depends on whose benefit predominates under the circumstances.
Its companion case, Skidmore v. Swift & Co., 323 U.S. 134 (1944), involved similar fire-hall duty at a Fort Worth packing plant. The lower courts had denied the workers' claim outright on the theory that waiting simply is not work. The Supreme Court reversed and sent the case back for a factual inquiry into the actual arrangement. At page 137, the Court distinguished an employee "engaged to wait" from one who "waited to be engaged." The employees won another opportunity to prove their claim, not a final damages award.
The Department of Labor's interpretive rule, 29 C.F.R. § 785.17, gives a starting point: an employee required to remain on call on the employer's premises, or so close that the time cannot be used effectively for personal purposes, is working; someone merely required to leave word where they can be reached is not. In Pabst, the Tenth Circuit explained that this location-focused language did not fully address remote alarm monitoring. Being physically at home did not answer whether the workers were free to use their time.
The Oklahoma Case: Pabst v. OG&E
A useful Oklahoma example is Pabst v. Oklahoma Gas & Electric Co., 228 F.3d 1128 (10th Cir. 2000). Three electronic technicians monitored automated heat, fire, and security alarms for OG&E buildings. Following a reduction in force, they were on call every weeknight from 4:30 p.m. to 7:30 a.m. and twenty-four hours a day on weekends. They had to respond within ten, later fifteen, minutes or face discipline. Their pagers were only about seventy percent reliable. The district court found three to five alarms per night, each requiring an average of forty-five minutes to respond. The technicians testified that they rarely got more than five hours of uninterrupted sleep. The short response window and unreliable pagers forced them to stay at or near home.
The federal district court for the Western District of Oklahoma, sitting in Oklahoma City, found the entire on-call period compensable — fifteen hours per weekday and twenty-four per weekend day, less time already paid — and in September 2000 the Tenth Circuit affirmed. OG&E pointed out that all but one of the circuit's published on-call decisions had gone the other way, but the court explained that counting cases is meaningless in a fact-driven inquiry; what matters is which precedent is most analogous. The critical factor was frequency of calls: three to five interruptions per night, paired with a fifteen-minute response requirement, matched the facts of an earlier decision in which the court had found firefighters' on-call time compensable, and far exceeded cases finding fewer than two calls a week non-compensable.
Two other holdings in Pabst matter for workers weighing a claim:
Not reporting every on-call hour did not defeat this claim. OG&E argued it lacked knowledge of the work because the technicians reported only time spent answering alarms. The court rejected that argument: the company knew about the monitoring duties it had assigned and had classified that waiting time as unpaid. This does not eliminate the employer-knowledge requirement or make accurate time reporting unnecessary in other cases.
Personal activities don't get subtracted hour by hour. The court rejected the idea that a judge must ask whose benefit predominated during each individual hour. The question is a yes-or-no one for the on-call period as a whole — and doing some personal things while tethered doesn't defeat the claim.
The plaintiffs did not win everything. On their cross-appeal, the Tenth Circuit upheld two distinct rulings. First, the violation was not willful, so the two-year limitations period applied rather than three years. Willfulness requires knowledge or reckless disregard of whether the conduct violates the FLSA. Second, the court upheld denial of liquidated damages, the additional amount ordinarily equal to unpaid minimum wages or overtime under § 216(b). Under § 260, the employer must show good faith and reasonable grounds for its belief to give the court discretion to reduce or deny that additional amount. The findings supporting OG&E on both issues included its payment practices and its eventual corrective action. A nonwillful violation does not, by itself, establish that separate defense.
What Makes On-Call Time Compensable — and What Doesn't
Because the inquiry is fact-intensive, courts weigh the whole arrangement: the agreement between the parties, the nature and extent of the restrictions, and the degree to which on-call duty interferes with personal life. Practical factors that have mattered in Tenth Circuit cases include how often calls actually come, how fast you must respond, whether you must stay within a geographic radius or at a particular place, and whether you can realistically shop, socialize, sleep, or attend your kids' events while on call.
On the non-compensable side of the line sits the ordinary arrangement most workers know: carry your phone, stay reachable, respond when needed, calls are occasional. Under § 785.17, merely being reachable is not work, and the Tenth Circuit has repeatedly found on-call time non-compensable where calls were infrequent and workers could genuinely go about their lives. On the compensable side sits Pabst: frequent interruptions, minutes-long response windows, discipline for missed responses, and a tether that keeps you home all night and all weekend.
A newer example shows the other side. In Barnes v. Omnicell, No. 23-1336 (10th Cir. May 28, 2024), the Tenth Circuit applied the same framework and affirmed summary judgment for the employer. A remote service technician received infrequent calls, had an hour to make initial contact, and could use the waiting time for personal activities. The decision is unpublished and persuasive, not binding precedent. Its practical lesson is that working from home and keeping a phone nearby do not, by themselves, turn every hour into paid work.
Even when waiting is not work, performing assigned tasks during a call or remote login generally is. For a covered, nonexempt employee, that work belongs in the hours used to calculate minimum wages and overtime. Whether it produces additional pay depends on total hours, pay already received, and applicable rules; an exempt employee is not automatically owed extra pay for each call. In Pabst, the technicians already worked forty regular hours each week, so compensable on-call hours added overtime. Our guides to unpaid wages in Oklahoma, pay and hour cuts, and oilfield overtime violations address related pay problems.
Deadlines and Practical Steps
Under 29 U.S.C. § 255(a), an FLSA claim generally must be commenced within two years after it accrues, extended to three years for a willful violation. Older unpaid periods can become time-barred while a worker waits. Filing requirements and any basis to pause the clock need individual review; do not assume a complaint to a supervisor preserves a lawsuit. The technicians in Pabst proved unpaid overtime but did not establish willfulness. Plan around the shorter period unless counsel determines otherwise.
Keep your schedules, pay records, and the policies or texts describing response requirements. Record the date, time, and duration of calls and remote work, along with restrictions that prevented ordinary personal activities. Preserve material you lawfully possess; do not access restricted systems or take confidential customer or patient records. Employers have their own recordkeeping duties, so missing personal records are not a reason to abandon a possible claim.
The FLSA also prohibits retaliation for protected wage complaints and participation in proceedings under the Act, 29 U.S.C. § 215(a)(3). The scope of that protection and possible state-law remedies deserve separate review; our wage complaint retaliation guide explains the distinction. Questions about meals interrupted by calls are addressed in our lunch and rest breaks guide.
Unpaid On-Call Time?
If frequent calls and short response windows have turned your evenings into unpaid work, our wage-claims team can review your schedule, duties, and pay. Bring the on-call policy and any records you have.
Frequently Asked Questions
Does my employer have to pay me just for carrying a phone after hours?
Generally, carrying a phone and remaining reachable does not make the whole evening hours worked under 29 C.F.R. § 785.17. Frequent calls, short response deadlines, and restrictions on where you can go may change that result. Actual tasks performed during calls or remote logins generally count as work. Whether additional pay is owed depends on FLSA coverage, exemptions, total hours and compensation, and any agreement promising on-call pay.
How many calls make on-call time compensable?
There is no magic number, but frequency is the factor the Tenth Circuit has singled out as critical. In Pabst, three to five alarms per night — each taking about forty-five minutes, against a fifteen-minute response deadline — made entire nights and weekends compensable, while the court contrasted earlier cases finding on-call time non-compensable where employees averaged fewer than two call-ins per week. The full picture matters: the same call volume with a relaxed response window and freedom to travel could come out differently.
I never reported my on-call hours as overtime. Did I give up the claim?
Not automatically. The employer in Pabst argued exactly that — the technicians reported only time spent answering alarms, so the company supposedly never knew they were "working" while on call. The Tenth Circuit rejected the argument, reasoning that an employer that creates an on-call system has at least constructive knowledge of the duties it imposes, and that it was misleading for OG&E to fault workers for not reporting hours its own policy had told them were unpaid. Keep in mind the flip side of Pabst: recovery there was limited to a two-year lookback because the violation was not willful, so delay still shrinks the claim.
Is there a separate Oklahoma state law on on-call pay?
For employees covered by the FLSA, federal law supplies the hours-worked test discussed here. State wage law, public-employment rules, and pay agreements can also matter. Oklahoma's personnel statute directs the state personnel agency to set pay rules that can include on-call pay for state employees, 74 O.S. § 840-1.6A(8); that is not a universal stipend for private-sector workers, and whether any rule currently applies to a given agency is a separate question. A promised stipend or minimum call-out payment may support a separate claim under an agreement or applicable wage law. An FLSA claim does not necessarily require filing in federal court: § 216(b) permits suit in a state or federal court of competent jurisdiction. Bring the written policy or agreement so counsel can identify the appropriate claim and forum.
When Your Evening Is No Longer Your Own
Being reachable is different from being unable to leave home or sleep through the night because work keeps interrupting. Pabst shows why those details matter. If that sounds like your schedule, contact Addison Law Firm for a free consultation about whether your on-call time counts as work.
