Do Employers Have to Pay for On-Call Time? A Guide for Non-Exempt Employees
Employers must pay non-exempt employees for on-call time when restrictions placed on that time prevent the employee from using it effectively for personal purposes. Under the Fair Labor Standards Act (FLSA), the test turns on control: an employee who is "engaged to wait" — restricted to the premises, required to respond within minutes, or otherwise unable to live a normal life during the waiting period — must be paid. An employee who is simply "waiting to be engaged" — free to run errands, sleep, or go about their day while carrying a phone — generally does not.
That baseline sounds simple. In practice, it's one of the most commonly misapplied wage-and-hour standards in healthcare, human services, utilities, IT, and skilled trades — industries where on-call coverage isn't optional, it's how the business functions. And several states apply a stricter standard than the FLSA, which means a policy that's compliant federally can still generate liability at the state level.
If you're not sure whether your on-call policy would hold up under a Department of Labor audit, that uncertainty is the exposure. Contact us to Schedule a Confidential Wage & Hour Review
The FLSA Standard: "Engaged to Wait" vs. "Waiting to Be Engaged"
The Department of Labor's regulation on this, 29 CFR § 785.17, draws the line based on the degree of restriction, not simply whether the employee was asked to carry a phone. Courts and the DOL generally look at:
Geographic restriction — can the employee be anywhere, or must they stay within a set distance of the workplace?
Response time — minutes, versus an hour or more?
Frequency of calls — occasional pages, or a pattern of interruption that makes the time functionally unusable?
Ability to trade on-call duty — can another employee cover if something comes up?
What the employee actually does during the time — sleeping, running errands, attending a child's event, versus staying tethered to a desk or vehicle?
No single factor is dispositive. Courts weigh them cumulatively. An employee required to respond within 10 minutes and stay within a 5-mile radius is almost certainly "engaged to wait" and must be paid for the full on-call period, not just the time spent actually working. An employee who carries a phone, has 2 hours to respond, and can otherwise go wherever they want is more likely "waiting to be engaged," with pay owed only for the time actually spent responding.
Healthcare and Human Services: Where This Gets Complicated
These two sectors generate a disproportionate share of on-call wage claims, for structural reasons.
Healthcare relies on physician, nursing, and allied-health on-call coverage around the clock. The complexity comes from mixing exempt and non-exempt staff on the same on-call rotation, often under the same informal policy — which is where compliance breaks down (more on that below).
Human services — group homes, residential treatment, crisis response, intellectual and developmental disability (I/DD) services — relies heavily on direct care workers and direct support professionals (DSPs) who are frequently required to be on-site or immediately available overnight, sometimes under "sleep time" arrangements where the employee is permitted to sleep but must respond instantly if needed. This is precisely the fact pattern that triggers the "engaged to wait" standard: an on-premises requirement combined with an unpredictable, safety-driven need to respond immediately strongly favors compensability, even during hours the employee is asleep.
Other industries with chronic on-call exposure follow a similar logic — wherever rapid response time or an on-site/nearby requirement is baked into the job:
Utilities (power, water, telecom outage response)
IT and systems administration (production outages, security incidents)
Skilled trades and facilities (HVAC, plumbing, elevator maintenance)
Veterinary and animal care
Property management and security
Concerned about your FLSA-compliance? See our related articles:
The Exempt vs. Non-Exempt Divide: Licensed Professionals vs. Direct Care Workers
This is the distinction that trips up even experienced HR teams, because the same word — "on-call" — gets applied to two legally different situations depending on who's doing it.
Licensed professionals — physicians, often advanced practice providers, and certain other credentialed roles — frequently qualify for the FLSA's professional exemption, provided they meet both the duties test and the salary basis requirements. For these employees, on-call status generally doesn't trigger additional pay obligations under the FLSA regardless of how restrictive it is, because exempt employees aren't paid by the hour in the first place. Importantly, registered nurses do not automatically qualify for this exemption the way physicians typically do — RNs must independently satisfy the professional exemption's duties and salary tests, and many RN roles, particularly bedside and staff nursing positions, are properly classified as non-exempt. Misclassifying RNs as exempt simply because they're licensed is a common and costly error.
Direct care workers and direct support professionals are, with very limited exception, non-exempt. These roles involve direct, hands-on service delivery rather than the exercise of independent professional judgment that exemption status requires. On-call time for this workforce is squarely subject to the FLSA's "engaged to wait" analysis — and because the nature of the work (safety monitoring, crisis response, medical needs) often requires an on-premises presence or immediate response, these roles have some of the strongest arguments for full compensability of on-call hours, sleep time included.
The practical risk: a single on-call policy applied uniformly across a mixed exempt/non-exempt team is a near-guaranteed compliance gap. What's lawful for the on-call physician is not automatically lawful for the on-call CNA or DSP on the same rotation.
Treating licensed and direct-care staff the same way on an on-call policy is one of the fastest ways to generate a wage claim. Contact us to Get Your On-Call Policy Reviewed →
States With Stricter On-Call Pay Requirements Than the FLSA
Several states impose standards well beyond the federal baseline. Three of the most significant:
California applies a "control test" established by the state Supreme Court in Mendiola v. CPS Security Solutions (2015). California courts weigh factors nearly identical to the federal test — geographic restriction, response time, call frequency, ability to trade on-call duty, and how much the employee's personal activities are actually curtailed — but apply them more protectively. Critically, Mendiola held that on-call sleep time is compensable even when the employee is permitted to sleep, if they're required to remain on-site. California also requires at least minimum wage for all controlled on-call time, and on-call hours count toward the daily and weekly overtime thresholds under California's stricter overtime rules.
New York imposes "call-in pay" requirements independent of the on-call compensability analysis itself. Under the state's Miscellaneous Industries Wage Order, an employee who reports for work by request or permission of the employer must be paid at least four hours (or the length of the scheduled shift, if shorter) at the state minimum wage — a floor that applies on top of, not instead of, standard on-call compensability rules. The Hospitality Industry Wage Order sets a similar but separate floor (generally three hours) for restaurant and hotel workers. This matters for on-call healthcare and human services staff who get called in: even a short call-in can trigger a multi-hour minimum payment.
Massachusetts codifies its on-call standard directly in regulation (454 CMR 27.04(2)): all on-call time is compensable unless the employee is not required to be at the work site or another specific location and is effectively free to use the time for personal purposes. Simply carrying a phone or pager does not, by itself, trigger pay — but any requirement to stay at a specific location does, and Massachusetts courts apply this standard with less tolerance for ambiguity than federal courts typically do.
A handful of other states and localities — including New Jersey, Illinois, Oregon, Connecticut, Rhode Island, and the District of Columbia — layer additional reporting-time or predictive-scheduling pay requirements on top of standard wage-and-hour law, particularly in retail and food service. If your organization operates in multiple states, a policy written to the FLSA floor is very likely non-compliant somewhere in your footprint.
Need help ensuring labor law compliance with a multi-state footprint? See how our Outsourced CHRO program can build the HR infrastructure you need to ensure ongoing labor law compliance.
The Executive Takeaway
On-call pay violations rarely come from employers deliberately refusing to pay. They come from policies written once, years ago, applied uniformly across roles and states that have since diverged from federal law — and from treating "on-call" as a single category when it legally isn't. A policy that correctly classifies your on-call RNs may be out of compliance for your on-call LPNs, and a policy that's fine in your home state may create real exposure the moment you have one employee on-call in California, New York, or Massachusetts or another state or locality with higher protections.
Given that wage-and-hour claims are typically excluded from standard employment practices liability insurance, the financial exposure from an on-call misclassification — back pay, liquidated damages, multi-state class exposure — lands directly on the organization, not a carrier.
Every on-call rotation running on an outdated or one-size-fits-all policy may be accumulating exposure right now. Contact us to Book a Confidential HR Risk Assessment →
Frequently Asked Questions About On-Call Pay
Do employers have to pay non-exempt employees for on-call time?
Sometimes. Under the FLSA, on-call time must be paid when restrictions on the employee's movement, response time, or activities are significant enough that they can't effectively use the time for personal purposes. Unrestricted on-call time where the employee can go about their day generally does not require pay beyond time actually spent responding.
Is sleep time during on-call shifts compensable?
It can be, especially if the employee is required to remain on-site. Several states, including California and Massachusetts, treat on-site sleep time as presumptively compensable unless a valid written agreement excludes a limited sleep period and the employee is able to get a full, uninterrupted period of rest.
Are exempt employees entitled to extra pay for being on-call?
No. Employees properly classified as exempt under the FLSA's executive, administrative, or professional exemptions are not entitled to additional compensation for on-call status, regardless of how restrictive the on-call requirements are, because exempt employees are paid on a salary basis rather than by the hour.
Are registered nurses exempt or non-exempt for on-call purposes?
It depends on the specific role, not the license alone. RNs must independently satisfy the FLSA's professional exemption duties and salary tests; many staff and bedside nursing roles are properly classified as non-exempt. Licensure alone does not establish exempt status.
What makes on-call time compensable under the FLSA?
Courts and the DOL look at the degree of control the employer exercises: how far the employee can travel, how quickly they must respond, how often they're called, whether they can trade on-call responsibilities, and whether they can realistically use the time for personal activities.
Do direct care workers and DSPs have to be paid for on-call hours?
In some circumstances, yes. Direct care and direct support roles that require an on-premises presence or rapid, unpredictable response for safety reasons, strongly favors compensability under the "engaged to wait" standard, including during sleep periods.
Does California treat on-call pay differently than federal law?
Yes. California applies a "control test" from Mendiola v. CPS Security Solutions that generally extends further than the FLSA, including treating required on-site sleep time as compensable and requiring at least minimum wage for all controlled on-call hours.
What is New York's call-in pay requirement?
Separate from on-call compensability itself, New York requires at least four hours of pay at minimum wage (or the scheduled shift length, if shorter) when a non-exempt employee reports to work at the employer's request, including when called in from on-call status. Restaurant and hotel employees follow a separate, similar rule under the Hospitality Industry Wage Order.
Does Massachusetts require pay for on-call time?
Generally yes, unless the employee is not required to be at a specific location and is effectively free to use the time for personal purposes. Simply requiring an employee to carry a phone or pager, without more, does not by itself trigger pay under Massachusetts law.
Can one on-call policy cover both exempt and non-exempt employees?
Not safely. A uniform policy applied across licensed exempt staff and non-exempt direct care or clinical staff is a common source of wage claims, since the two groups are subject to entirely different legal standards for on-call compensation.
Related Reading:
