On-Call Pay Rules: When Standby Time Is Compensable

On-call time is paid when the employee is not really free to use the time as their own.

The legal rule is fact-specific, but the employer question is practical: can the worker actually live their life during standby, or have your restrictions turned that time into work? The federal rule comes from Skidmore v. Swift & Co., 323 U.S. 134 (1944), and no statute or regulation has displaced its totality-of-the-circumstances test.

The federal regulation that operationalizes Skidmore for on-call duty is 29 CFR §785.17. The companion regulation that distinguishes "engaged to wait" from "waiting to be engaged" is 29 CFR §785.16. The sleep-time rules for shifts of 24 hours or more sit in §785.20–.23.

California has rejected the federal §785.22 sleep-time safe harbor for state-law claims. In Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015), the California Supreme Court held that on-premises 24-hour security guards are owed all 24 hours under IWC Wage Order 4 — the federal eight-hours-sleep deduction does not carry over.

The result is two-tier exposure for multi-state employers. The same on-call policy can be compliant in 49 states and a class action in California. The same scheduled sleep period can survive federal scrutiny under §785.22 and collapse under California's broader "subject to control" hours-worked definition.

Skip to the state-by-state table →

Quick reference

• Federal floor (29 CFR §785.17): on-call ON the employer's premises = compensable; merely required to "leave word" off-premises = NOT compensable. Everything in between is Skidmore totality.
• Engaged to wait → compensable; waiting to be engaged → NOT compensable. 29 CFR §785.16 + Skidmore.
• Less than 24 hours (29 CFR §785.21): the entire on-duty period is hours worked, even with sleep facilities provided.
• 24+ hours (29 CFR §785.22): up to 8 hours sleep deduction permitted with written agreement + adequate facilities + usually-uninterrupted sleep. Interruptions count as hours worked. Less than 5 hours of consecutive sleep = the entire scheduled sleep period is compensable.
• California: the §785.22 deduction does NOT apply to state-law claims after Mendiola. On-premises 24-hour duty = all 24 hours.
• Hospitals (29 USC §207(j)): "8 and 80" alternative — overtime owed for hours in excess of 8 in any workday AND 80 in a 14-day period. Compensable on-call enters this calculation.
• Public safety (29 USC §207(k) + 29 CFR Part 553): police and fire run on a 7- to 28-day work period instead of the standard 7-day workweek.
• Two-rate compensation (standby rate + active-call rate): 29 CFR §778.115 weighted-average rule controls the overtime regular rate.
• Mt. Clemens burden shift: when on-call records are inadequate, the employee can establish unpaid hours by "just and reasonable inference" and the burden shifts to the employer. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).

The 5 Most Expensive On-Call Mistakes

1. Paying a stipend without analyzing the underlying compensable hours. A $200/week on-call stipend is non-discretionary under 29 CFR §778.208 and must be included in the regular rate. It does not substitute for the hourly rate × Skidmore-compensable standby hours. National employers with this pattern routinely accumulate years of unpaid wage exposure on top of the stipend they've already paid; under §216(b), the back-pay is doubled as liquidated damages where the violation is willful.

2. The Mendiola trap: 24-hour security duty in California. Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015) held that on-premises 24-hour security guards are owed every hour under IWC Wage Order 4 and that the federal §785.22 sleep-time deduction does not apply to California state-law claims. National security operators with uniform "pay 8 hours / unpay 16" policies have material California exposure even when the policy is defensible federally. Settlements in the wake of Mendiola have run from low-single-digit to eight-figure dollars for medium-sized security workforces.

3. Failing the §785.22 sleep-time-deduction conditions for 24+ hour duty. The deduction requires (a) an express agreement, (b) adequate sleeping facilities, (c) usually-uninterrupted sleep, and (d) at minimum 5 consecutive hours of sleep on each scheduled night. Most employers get the agreement and the bed. Few maintain the call-frequency discipline. Once call logs surface in litigation showing nightly interruptions, the deduction collapses retroactively and the entire 8-hour scheduled sleep period becomes compensable — for every shift across the statute period.

4. PagerDuty / Opsgenie / ServiceNow rotations without explicit Skidmore analysis. IT and DevOps on-call patterns layer a 5–15 minute response SLA on top of tracked acknowledgment, response, and resolution times. The shorter the SLA and the more frequent the calls, the closer the standby time gets to Skidmore-compensable. Most tech employers pay a stipend during standby and the regular rate during active engagement; the open exposure is the standby time the employee cannot meaningfully use because they are tethered to the page.

5. Healthcare on-call interacting with the §7(j) 8-and-80 rule. Hospitals using the §7(j) hospital exemption compute overtime over 14-day periods (8 in any workday + 80 in 14 days), not the standard 40-in-7-days. When on-call hours become compensable under Skidmore or under state-law analysis, they enter the 14-day calculation in ways most payroll systems handle as a flat add. The regular-rate math changes; the half-time premium owed changes; the cumulative exposure across a multi-year resident rotation can cross seven figures before any liquidated-damages multiplier applies.

Federal Baseline: 29 CFR Part 785 and the Skidmore Test

29 CFR §785.17 — On-call time

"An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his 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 his home or with company officials where he may be reached is not working while on call."

The regulation states two poles: on-premises = compensable; "leave word" = not. The litigated cases sit in the middle — restricted off-premises on-call, mandatory response windows, geographic limits, frequency-of-call patterns — and that middle is governed by the Skidmore totality test under §785.16.

29 CFR §785.16 — Off duty (waiting time)

"Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived."

The two doctrinal categories the regulation operationalizes:

• "Engaged to wait" — waiting is part of the job; the primary benefit runs to the employer; the employee is on duty even when nothing is actively happening. Compensable.
• "Waiting to be engaged" — the employee is free to use the time as their own, with only minor responsiveness obligations. Not compensable.

The text of §785.16 is brief. The substantive doctrine comes from the 1944 Supreme Court companion cases.

Skidmore v. Swift & Co., 323 U.S. 134 (1944)

Facts. Skidmore and six co-workers worked daytime shifts at Swift's meatpacking plant. Three to four nights a week, they remained on the premises overnight to respond to fire alarms. They had sleeping quarters, could eat, play cards, listen to the radio, and were paid only when an alarm sounded.

Holding. Whether on-call time is "working time" under the FLSA is a question of fact for the trial court. The court must scrutinize the employment agreement, appraise its practical construction by the parties, consider the nature of the service, and weigh "all of the surrounding circumstances." No bright-line rule is available.

The frame: totality of the circumstances. The Supreme Court explicitly rejected per-se categories. Skidmore has controlled every on-call dispute since.

Armour & Co. v. Wantock, 323 U.S. 126 (1944)

The same Supreme Court day issued Armour & Co. v. Wantock, applying the same totality test to private firefighters at Armour & Co.'s soap factory. The pairing matters: Skidmore and Armour together define the federal on-call framework, and modern federal appellate decisions on on-call routinely cite both.

The Skidmore factors as applied in lower federal courts

No single factor is dispositive. The more boxes that check toward "the employer controls the time," the more likely the on-call standby is compensable.

• On-premises vs off-premises. On-premises strongly favors compensability; off-premises shifts the analysis to the other factors.
• Required response time. A 5-minute response window is significantly more restrictive than a 30-minute or one-hour window. Federal circuits have found 15-minute response requirements compensable in some contexts and non-compensable in others on otherwise distinguishable facts.
• Geographic limits. "Stay within 20 miles of the hospital" or "stay within the county" restrictions narrow what the employee can do during the standby period.
• Frequency and unpredictability of calls. Hourly pages ≠ weekly pages. The more frequent and unpredictable, the less the time can be put to personal use.
• Personal-activity restrictions. Prohibitions on alcohol, on certain activities (driving, traveling, sleeping in noisy environments), on having anyone in the home — each one shifts the analysis.
• Ability to trade or substitute shifts. When the employee can hand off the on-call to a colleague, the time is less restrictive than when they cannot.
• Frequency of actual interruption (especially for 24-hour duty). Nightly call interruptions defeat the §785.22 sleep-time deduction even when all the formal conditions are met.
• Separate compensation for on-call. A stipend doesn't automatically render the time non-compensable, but its presence — and the parties' practical construction of it — is evidence.

Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir. 1994)

Facts. Sonoma County coroner deputies were on call 24 hours a day, seven days a week. They were required to answer a page or telephone call within 15 minutes and respond to death reports as soon as possible.

Procedural posture. District court found the on-call time compensable. The Ninth Circuit reversed.

Holding. Applying the Skidmore totality test, the Ninth Circuit found the 15-minute response requirement and related restrictions did not predominantly benefit the employer to the degree required for the standby time to be hours worked. Deputies could engage in most personal activities, sleep at home, eat with family, and trade calls with colleagues.

Why it matters. Berry is the federal-floor benchmark for restricted off-premises on-call. A 15-minute response window, on these facts, was not enough to make the federal totality test flip toward compensability. Plaintiffs' counsel respond by raising state-law claims under broader-than-FLSA frameworks (CA, NY, WA) — the federal floor is not the only game.

29 CFR §785.21 — Duty of less than 24 hours

"An employee who is required to be on duty for less than 24 hours is working even though he is permitted to sleep or engage in other personal activities when not busy. A telephone operator, for example, who is required to be on duty for specified hours is working even though she is permitted to sleep when not busy answering calls. It is enough that she is required to be on duty and her time spent waiting is given over to the employer."

A bright-line rule: under 24 hours, all on-duty time is hours worked, regardless of sleep facilities or personal-activity permission. The telephone-operator example is not hypothetical — it is the operational reading. An employee on a 16-hour shift permitted to nap between calls is working the entire 16 hours.

29 CFR §785.22 — Duty of 24 hours or more (sleep-time deduction)

Subsection (a):

"Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken."

Subsection (b):

"If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted. For enforcement purposes, the Divisions have adopted the rule that if the employee cannot get at least 5 hours' sleep during the scheduled period, the entire time is working time."

Four conditions for the deduction:

1. 24+ hour duty. §785.21 prohibits any deduction for shifts under 24 hours.
2. Express agreement between employer and employee — written or implied by practice.
3. Adequate sleeping facilities furnished by the employer — a bed, quiet conditions, employer-provided.
4. Usually-uninterrupted sleep with at least 5 hours of consecutive sleep on each scheduled night.

The fourth condition is the one most employers fail in practice. Litigation tends to surface call logs that show frequent nightly interruptions; once the 5-consecutive-hours floor is broken, the deduction collapses retroactively and the entire scheduled sleep period becomes compensable across every affected shift in the statute period.

29 CFR §785.20 and §785.23 — adjacent rules

§785.20 cross-references §785.21 and §785.22 as the operative sleep-time rules. §785.23 covers the related "employee residing on employer's premises or working at home" rule — under which an employer and employee may reach "any reasonable agreement" as to the hours worked, recognizing that not all time on the premises is hours worked when the employee is resident there. The §785.23 framework is what employer-side counsel sometimes invokes for live-in caregivers and other resident-style workers; it does not displace §785.22 for 24-hour-duty patterns where the employee is on duty rather than merely resident.

29 USC §207(j) and 29 CFR §778.601 — Hospital 8-and-80

29 USC §207(j) permits hospitals and "establishments which are an institution primarily engaged in the care of the sick, the aged, or the mentally ill or defective who reside on the premises" to elect a 14-day overtime computation period in lieu of the standard 7-day workweek under §207(a). The implementing regulations are at 29 CFR §778.601 (and the surrounding §778.602-.605 detail).

Under §207(j), overtime is owed for hours worked in excess of 8 in any workday AND in excess of 80 in the 14-day period. The election requires an agreement reached before the work is performed.

Why this matters for on-call. Healthcare on-call patterns (resident on-call, ER coverage, nursing 24-hour staff) routinely run across the 14-day period in overlapping shifts. When Skidmore-compensable on-call hours enter the §207(j) calculation, the daily-8 trigger fires earlier and the 14-day-80 trigger fires for more workers. Hospitals using §7(j) must track on-call separately to compute the overtime owed correctly under both the daily and the bi-weekly triggers; most payroll systems treat compensable on-call as a flat add without recomputing the regular rate.

29 USC §207(k) and 29 CFR Part 553 — Public-safety exemption

Police and fire on-call patterns sit under a separate FLSA exemption. 29 USC §207(k) permits a 7- to 28-day work period for "any employee in fire protection activities" and "any employee in law enforcement activities" who is employed by a public agency. The implementing regulations are at 29 CFR Part 553 (Subpart C, §§553.200–553.233 covers fire and law enforcement; §§553.100–.106 covers the general framework).

The maximum hours that may be worked without overtime, by length of work period:

Work period (days)	Fire protection max hours	Law enforcement max hours
28	212	171
27	204	165
26	197	159
25	189	153
24	182	147
...	...	...
7	53	43

(Full table at 29 CFR §553.230.)

For police and fire on-call, the §7(k) period definition is usually the load-bearing question, not Skidmore doctrine per se: a department's choice of work period determines when the overtime threshold is crossed. State law (CA, NY, NJ, IL) often gives police and firefighters collective bargaining rights that supersede the federal floor.

29 CFR §778.115 — Two regular rates (weighted average)

"Where an employee in a single workweek works at two or more different types of work for which different non-overtime rates of pay (of not less than the applicable minimum wage) have been established, his regular rate for that week is the weighted average of such rates. That is, his total earnings (except statutory exclusions) are computed to include his compensation during the workweek from all such rates, and are then divided by the total number of hours worked at all jobs."

The on-call application: when the employer pays a lower hourly rate during standby ($10/hour) and the regular rate when actively engaged ($30/hour), the regular rate for overtime purposes is the weighted average — not the higher rate. The same regulation permits the §778.419 alternative ("regular rate of pay for the work performed during the overtime hours"), but only with an express prior agreement; absent that agreement, §778.115 controls.

29 CFR §778.208–§778.209 — Non-discretionary bonuses and apportionment

29 CFR §778.208:

"Sums paid as gifts; payments in the nature of gifts made on special occasions, such as Christmas presents and birthday presents, will not be regarded as part of the regular rate. Other sums paid as bonuses or otherwise to employees will be regarded as part of the regular rate of pay if the bonus has been promised to employees before the work is performed or is required to be paid by an agreement or by understanding."

An on-call stipend — announced in advance, paid as a matter of past practice — falls under the "promised before the work is performed" branch. It must be included in the regular rate for overtime computation. §778.209 then specifies the apportionment method: the bonus is allocated over the workweeks (or other period) it covers, and the regular rate is recomputed.

Most payroll systems handle the stipend as a flat add to the paycheck without recomputing the regular rate. That is the audit finding.

California — Broader Than FLSA

IWC Wage Orders and the "subject to control" hours-worked definition

California's IWC Wage Orders are promulgated under Labor Code §1198 and apply sector-by-sector (Wage Orders 1 through 17 covering manufacturing, mercantile, professional/technical/clerical, food service, agriculture, construction, and others). Every Wage Order defines "hours worked" to include any time the employee is "subject to the control of an employer." The relevant Wage Order for security guards and many service patterns is Wage Order 4 (Professional, Technical, Clerical, Mechanical, and Similar Occupations), Section 2(K).

The "subject to control" definition is broader than the federal Skidmore totality test. Time that would fail the Skidmore totality test under federal law can still be compensable in California if the employer exercises control during the period.

Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015)

Facts. CPS Security employed guards at California construction sites under a schedule of 16-hour shifts (8 hours on duty + 8 hours on-call) on weekdays and 24-hour shifts (16 hours on duty + 8 hours on-call) on weekends. Guards were required to live in employer-provided trailers at the work sites during their shifts and to remain on-site, in uniform, and within 30 minutes' response distance during on-call hours. CPS counted only the active-duty hours as compensable; the on-call hours were paid only when guards were actually called to investigate a disturbance.

Procedural posture. Trial court certified the class and entered partial summary judgment for the guards on the hours-worked issue. The Court of Appeal affirmed in part and reversed in part. The California Supreme Court granted review (S206874) and decided the case January 8, 2015.

Holding. All on-call hours are compensable under IWC Wage Order 4. The court found that CPS exercised "substantial control" over the guards during on-call hours (mandatory on-site residency, 30-minute response distance, uniform requirement, alarm-response obligation) and that the federal §785.22 sleep-time deduction safe harbor does not apply to California state-law claims.

Reasoning. The "subject to control" definition in Wage Order 4 § 2(K) reaches further than the federal Skidmore totality test. The federal §785.22 sleep-time deduction is a creature of federal regulation and does not displace the broader California hours-worked definition. The state Industrial Welfare Commission did not adopt the federal sleep-time framework when promulgating the Wage Orders.

Practical effect. Any California employer with on-premises 24-hour-duty on-call patterns owes the full on-call hours. The federal sleep-time deduction is unavailable for California claims regardless of facilities, written agreement, or actual interruption rates. Settlements in the wake of Mendiola have run from low-single-digit to eight-figure dollars for medium-sized security workforces.

Troester v. Starbucks Corp., 5 Cal.5th 829 (2018) — applied to on-call

Troester v. Starbucks rejected the federal de minimis doctrine for California state-law claims. The court held that "an employer that requires its employees to work minutes off the clock on a regular basis or as a regular feature of the job" must pay for that time, even when the increments are small.

Applied to on-call: any working-while-on-call activity that's compensable on the merits — acknowledging a PagerDuty alert, taking a 30-second triage call, answering a Slack ping that requires action — is owed in California, no matter how brief. The federal ~10-minute-per-day de minimis floor does not apply.

California Labor Code §510 and reporting-time pay (Wage Order §4(A))

Labor Code §510 sets the daily-overtime baseline (1.5× after 8 hours, 2× after 12, 1.5× for the first 8 hours of the 7th consecutive day, 2× thereafter). Compensable on-call hours count toward the daily-8 trigger as well as the weekly-40 trigger — unlike federal law, where only the weekly trigger applies.

IWC Wage Orders also include a "reporting-time pay" provision (e.g., Wage Order 4 §5 and parallel sections across the other orders): when an employee reports for work but is not put to work or is furnished less than half of the usual scheduled day's work, the employee is owed half the usual day's pay, but no less than 2 hours and no more than 4 hours. For on-call patterns where the employee is told to report and then released, reporting-time pay can attach as a floor regardless of the Skidmore analysis.

Recent California Supreme Court guidance on reporting-time pay came in Ward v. Tilly's, Inc., 31 Cal.App.5th 1167 (2019), holding that on-call shifts requiring the employee to call in 2 hours before a potential shift trigger reporting-time pay obligations even when the employee is told not to come in. Ward is a Court of Appeal decision; the California Supreme Court denied review.

Things California employers consistently miss

• On-premises 24-hour duty without the §785.22 safe harbor. A national security firm with one California site running 24-hour rotations under a federal sleep-time policy will discover the Mendiola exposure first when a class action is certified. The fix is either to eliminate the on-call portion of the schedule or to pay all 24 hours in California regardless of duty status.
• PagerDuty / Slack acknowledgment time as compensable working-while-on-call. The federal de minimis defense (under §785.47) routinely excuses small per-event compensable time. California does not. Acknowledging a 20-second page is Troester-compensable in California.
• Stipend-only compensation for restricted on-call. A $200/week on-call stipend doesn't cover compensable hours in California any more than it does federally — and California's broader "subject to control" test makes more on-call time compensable than Skidmore would. The stipend must be included in the regular rate for overtime under §778.208–§778.209, and the underlying hourly rate is owed on top for compensable standby time.
• Daily overtime under Labor Code §510 with compensable on-call layered in. A non-exempt California employee with 8 hours of active work plus 2 hours of Skidmore-compensable on-call standby has crossed the daily-8 trigger. The 2 hours of standby owe overtime at 1.5×, not straight time. Federal law has no daily-overtime equivalent; this is California-only exposure.
• Mandatory call-trading restrictions. When the employee can't trade an on-call shift with a colleague — and call-trading is prohibited by policy — the employee's control over their own time is reduced. Skidmore federal courts weigh this as one factor among many; California Mendiola-style analysis treats it as direct evidence of "subject to control."
• Reporting-time pay for call-in shifts. Under Ward v. Tilly's, an on-call shift requiring the employee to check in before a potential shift triggers reporting-time pay even when the employee is released without working. Most employers track this only when the employee actually reports physically; the call-in trigger is missed.

State-by-state coverage

California is the strictest, but several states have hours-worked definitions or specific on-call provisions that go beyond the federal Skidmore totality framework. The table covers states where state-law on-call exposure differs meaningfully from the federal baseline.

State	How state law differs from federal Skidmore	Citation
California	"Subject to control" test under IWC Wage Orders is broader than federal Skidmore totality. The §785.22 sleep-time deduction does not apply to state-law claims (Mendiola). No federal de minimis (Troester). Daily-overtime trigger under §510 attaches to compensable on-call. Reporting-time pay can attach to call-in on-call shifts (Ward v. Tilly's).	CA Labor Code §§510, 1198; IWC Wage Order 4 §§ 2(K), 5; Mendiola, 60 Cal.4th 833 (2015)
New York	NYLL §663 + 12 NYCRR Part 142 — "hours worked" includes time "the employee is required to be available for work at a place prescribed by the employer." Federal Skidmore does not control NYLL state-law claims; New York courts apply broader analysis for restricted off-premises on-call.	NYLL §663; 12 NYCRR Part 142 (Minimum Wage Order for Miscellaneous Industries)
Washington	WAC 296-126-002(8) — "hours worked" includes "all time during which an employee is authorized or required to be on duty on the employer's premises or at a prescribed workplace." HB 1155 (2019) added hospital-sector specifics requiring meal-break protections that interact with on-call rotation patterns.	WAC 296-126-002; HB 1155 (codified at RCW 49.12.480)
Oregon	ORS 653.010(11) — "hours worked" includes time the employee is "required or permitted" to work AND time the employee is required to be at a prescribed location. BOLI administrative guidance treats restrictive off-premises on-call as compensable when the employee cannot use the time effectively for personal purposes.	ORS 653.010(11); OAR 839-020-0040 to -0043
Massachusetts	MGL c.151 §1A definition tracks federal broadly, but treble damages are automatic under MGL c.149 §150 — practical effect for on-call claims is the same 3× back-pay multiplier as other wage claims. The Mass. Reporting-Time Pay regulation (940 CMR 27.04) sets a 3-hour minimum for employees who report but are not put to work.	MGL c.151 §1A; MGL c.149 §150; 940 CMR 27.04
Texas	Texas Workforce Commission follows federal §785.16/§785.17 framework closely; minimal state-law expansion. TWC's "Especially for Texas Employers" guidance is the standard practitioner reference and tracks federal regulatory text plus operational commentary.	TWC Especially for Texas Employers: Waiting or On-Call Time
New Jersey	NJ Wage and Hour Law tracks federal broadly; NJ DOL regulations at N.J.A.C. 12:56-5.7 mirror federal §785.17 language on on-call time on/off the employer's premises.	N.J.S.A. 34:11-56a et seq.; N.J.A.C. 12:56-5.7
Illinois	IL Minimum Wage Law tracks federal broadly; the IL Department of Labor follows federal §785.17 framework. Public-safety collective-bargaining agreements often supersede the §7(k) federal floor for police and fire.	820 ILCS 105; 56 Ill. Adm. Code 210.110
Pennsylvania	PMWA at 43 P.S. §§ 333.101 et seq. + 34 Pa. Code Chapter 231; "hours worked" definition tracks federal §785.16/§785.17 closely. PA Supreme Court has not displaced the federal framework for state-law on-call claims.	43 P.S. § 333.101; 34 Pa. Code § 231.1
Colorado	CDLE COMPS Order Rule 1.9 defines "hours worked" to include "all time during which an employee is performing labor or services for the benefit of an employer." The 2020 revision broadened the definition; on-call analysis remains substantively similar to federal Skidmore in current case law.	7 CCR 1103-1 (COMPS Order Rule 1.9)
Minnesota	MN Stat. §177.23 + Minn. Rules 5200.0120 — federal-floor framework. State agency guidance follows §785.17.	Minn. Stat. §177.23; Minn. R. 5200.0120
Connecticut	Conn. Gen. Stat. §31-58 + Conn. Agencies Regs. §31-60-10 — federal-floor framework. State Department of Labor follows federal §785.17.	Conn. Gen. Stat. §31-58; Conn. Agencies Regs. §31-60-10
Most other states	Follow federal Skidmore totality framework via state wage-and-hour rules that adopt or track federal §785.17. State DOL administrative guidance sometimes adds incremental protections (e.g., Maine, Maryland, Nevada) but does not displace the federal substantive framework for on-call.	State-by-state agency guidance

Reporting-time pay states (overlap with on-call exposure)

Several states require "reporting-time" or "show-up" pay when an employee reports for a scheduled shift and is not put to work, or is furnished less than half the day's scheduled hours. These provisions interact with on-call when the employer requires the employee to call in or report and then releases them without work.

State	Reporting-time / show-up pay rule	Citation
California	Half the scheduled day's pay, not less than 2 nor more than 4 hours' pay at the regular rate	IWC Wage Order 4 § 5; Ward v. Tilly's, 31 Cal.App.5th 1167 (2019)
Connecticut	4 hours' minimum pay (mercantile + retail); 2 hours' minimum (other industries)	Conn. Agencies Regs. §31-62-D2; §31-62-E2
District of Columbia	4 hours' minimum at minimum wage if scheduled hours less than 4; else hours worked + half the scheduled time	7 DCMR §907
Massachusetts	3 hours' minimum at minimum wage	940 CMR 27.04
New Hampshire	2 hours' minimum at agreed-upon rate	RSA 275:43-a
New Jersey	1 hour minimum at applicable minimum wage if employee reports	N.J.A.C. 12:56-5.5
New York	"Call-in pay" of 4 hours at minimum wage (or hours worked + minimum wage to reach 4), most industries	12 NYCRR §142-2.3
Oregon	Reporting-time pay under collective bargaining only; otherwise no statutory requirement	OAR 839-020-0042 (minor exception)
Rhode Island	3 hours' minimum at regular rate (some industries)	R.I. Gen. Laws § 28-12-3.2

Reporting-time pay is a floor when the employer's call-in policy fires the requirement. It is not a substitute for compensable on-call standby time under Skidmore or Mendiola; both may apply on the same fact pattern.

Industry-Specific Patterns

On-call exposure concentrates in industries where standby-and-respond is structural. Each has its own characteristic litigation pattern.

Healthcare — residents, ER, hospital staff

The largest on-call exposure category in the United States. Three sub-patterns:

• Hospital residents on home call. Pager response, 20–30 minute geographic limit, alcohol restriction. Federal courts have split on whether resident on-call is compensable under Skidmore; the ACGME duty-hour rules limit total hours but do not federalize compensability. California, New York, and Washington state law typically broader.
• ER physicians on call. Generally pager-based with hospital-determined response windows. Most federal courts apply Skidmore to find off-premises on-call NOT compensable absent severe restriction; state law analysis can flip the result in CA/NY/WA.
• 24-hour inpatient staff (nurses, hospital floor staff, NICU, ICU). §785.22 sleep-time deduction is permissive federally but defeated when interruptions are frequent. In California, Mendiola governs and the deduction is unavailable. The §7(j) 8-and-80 overtime rule layers on top and changes the regular-rate math when on-call hours enter the calculation.

The healthcare-specific 29 CFR §552 domestic-service rule (the 2013 amendment narrowing the FLSA exemption for third-party-agency home-care workers, effective January 1, 2015 after the Home Care Association v. Weil litigation) is adjacent: it covers home-care workers but does not displace §785.17/§785.22 for on-call analysis.

IT support and DevOps

The fastest-growing on-call exposure category. PagerDuty, Opsgenie, ServiceNow, and similar platforms run rotations with 5–15 minute response SLAs. The platforms track exact acknowledgment, response, and resolution times — the same kind of exact-time records that drive Mt. Clemens analysis in field-service drive-time disputes.

Federal Skidmore application. A tight response SLA (5–15 minutes) + tracked acknowledgment + frequent calls pushes toward compensability. A long SLA (30+ minutes) + infrequent calls + ability to trade shifts pushes away from it. The California broader-than-FLSA analysis pushes further — Troester's no-de-minimis rule covers even brief acknowledgment moments.

Most tech employers pay an on-call stipend plus full hourly rate during active engagement. The open exposure is the standby time between calls — the time the employee can't meaningfully use because they're tethered to the page.

Security and 24-hour guard services

The Mendiola pattern. 24-hour security at construction sites, residential facilities, event venues, and gated communities. California exposure is the highest in the country post-Mendiola; other states apply Skidmore totality.

National security operators with uniform "we pay the active hours" policies face material California exposure even when the policy is defensible under federal law. The fix: either eliminate on-call from California schedules or pay the full 24 hours in California.

Field service emergency callbacks

An HVAC tech, plumber, or IT support tech called out at 2am for an emergency customer repair earns:

• Compensable drive time to the emergency customer site under 29 CFR §785.36 — emergency travel from home to a customer location is hours worked.
• Compensable on-call response time under §785.17 once they begin work.
• On-call standby time before the call — Skidmore totality decides whether the standby is also compensable.

Most field-service businesses pay actively-engaged callout time but treat the standby as uncompensated. The exposure surfaces when call logs are aggregated against the Skidmore factors and the standby starts looking restrictive. See travel-time-pay research for the §785.36 emergency-callback analysis.

Public safety — police and fire

The §7(k) public-safety exemption (29 USC §207(k) + 29 CFR Part 553) is the load-bearing framework. Most police and fire on-call disputes turn on the §7(k) work-period definition rather than on Skidmore doctrine per se: a department's choice of work period (7 to 28 days) determines when overtime is owed. State law (CA, NY, NJ, IL) often gives police and firefighters collective bargaining rights that supersede the federal floor; in particular, California overtime law (Labor Code §510) is not displaced for state-law claims by §7(k).

EMS and ambulance services

EMS workers are typically not "fire protection" or "law enforcement" under §7(k) per 29 CFR §553.215 unless they meet specific criteria (substantial duties on the same trip with a fire department or police department). EMS workers without the §7(k) qualification fall under the standard FLSA framework — §785.17 for on-call, §785.22 for 24-hour shifts. The dispute often turns on whether the EMS service is "incidental to or in conjunction with" fire or police activity.

Construction industry — California Wage Order 16

California IWC Wage Order 16 (On-Site Construction, Drilling, Logging, and Mining) has specific reporting-time and call-back provisions for the construction sector. Mandatory crew meetings trigger compensable travel from the meeting point under California law more readily than under federal law; on-call standby for unscheduled call-outs falls under the same Wage Order's "hours worked" definition as the rest of the IWC framework, controlled by the "subject to control" test.

Trucking — intersection with §13(b)(1)

CMV (Commercial Motor Vehicle) drivers are subject to FMCSA hours-of-service rules separately from FLSA. The intersection: FLSA treats CMV driving as compensable hours worked, but the FLSA "motor carrier exemption" at 29 USC §213(b)(1) exempts most interstate CMV drivers from FLSA overtime — which means on-call standby time is "compensable" for minimum-wage purposes but not for federal overtime calculations. State law (CA, OR, WA) sometimes restores the overtime entitlement; this is a per-state question for trucking specifically.

Multi-state and remote workers

On-call liability follows the employee's work location, not the employer's HQ. Same rule as travel-time, off-the-clock, overtime, and breaks. For multi-state employers, three concrete scenarios:

• Texas-headquartered tech with a California-based DevOps engineer. A PagerDuty rotation with a 15-minute response SLA, applied uniformly across the workforce. The Texas employee is governed by the federal Skidmore totality test as adapted by TWC guidance — the standby is likely not compensable. The California employee is governed by IWC Wage Order 4's "subject to control" test and the Troester no-de-minimis rule — the standby is more likely compensable, and even brief acknowledgment moments are owed. The same policy yields different compliance outcomes.
• National hospital system with on-call residents across multiple states. The §7(j) 8-and-80 election applies federally if the agreement is in place. California state-law claims are governed by IWC Wage Order 4 + Mendiola; New York by NYLL §663 + 12 NYCRR Part 142; Washington by WAC 296-126-002 + HB 1155. The §785.22 sleep-time deduction works federally and in most states; it fails in California for on-premises 24-hour duty.
• Multi-site security operator. 24-hour-duty patterns. California sites owe all 24 hours under Mendiola; most other state sites permit the §785.22 sleep-time deduction with the four conditions satisfied. Uniform policies risk per-state exposure; per-state policies require operational complexity that most security operators handle poorly.

The strict-everywhere defense: track on-call standby time in every state and pay it when Skidmore-compensable. A California-baseline on-call policy (all standby time captured, no de minimis, no §785.22 deduction) satisfies every other state's rule. The marginal labor cost is small; the elimination of per-state exposure is large.

Post-pandemic remote work patterns add a second layer. Customer-support, IT-help-desk, and inside-sales workers with tight response SLAs through Slack, email, or Salesforce face Skidmore-style analysis when the standby time becomes the predominant constraint. The "always-on" expectation is functionally on-call; California's no-de-minimis rule covers every brief acknowledgment moment that follows.

Recent changes (2024–2026)

• Healthcare-sector class-action wave (2024–2026). Hospital sleep-time and on-call class actions have surged as healthcare workers organize and as hospitals stretch staffing models. Most settlements are not publicly disclosed but practitioner commentary tracks consistent six- to seven-figure outcomes for medium-sized hospital workforces. Litigation theories blend §785.22 condition failure (inadequate sleep, frequent interruptions) with §7(j) regular-rate miscalculation when compensable on-call enters the 14-day overtime period.
• PagerDuty / Opsgenie / ServiceNow platform metadata as litigation evidence. Platform logs of acknowledgment, response, and resolution times have become routine evidence in IT/DevOps on-call disputes. The exact-time records defeat estimation-based "we paid roughly enough" defenses — paralleling GPS records in field-service drive-time litigation and badge-access records in pre/post-shift donning-and-doffing cases. The records cut both ways: they prove the work but also prove the standby pattern was restrictive enough to push toward Skidmore compensability.
• Post-pandemic always-on remote-work patterns under Skidmore. Customer-support, IT-help-desk, and inside-sales workers with tight response SLAs through Slack, email, or Salesforce face Skidmore-style analysis when the standby time becomes the predominant constraint. The "respond to any DM within 5 minutes" expectation is functionally on-call. California exposure is concentrated here because Troester removes the de minimis floor that otherwise excuses small per-event compensable moments.
• DOL Wage and Hour Division guidance. No major regulatory amendments to §785.17 since promulgation; DOL Fact Sheet #22 (Hours Worked Under the FLSA) remains the canonical "hours worked" reference. The DOL Field Operations Handbook continues to provide operational interpretation. State-specific guidance from California DIR, NY DOL, and Washington L&I has tightened in the same direction (broader-than-federal hours-worked treatment of restricted off-premises on-call).
• California's continuing development of reporting-time pay. Ward v. Tilly's, Inc., 31 Cal.App.5th 1167 (2019) extended reporting-time pay to call-in on-call shifts. The California Supreme Court denied review, leaving Ward as binding precedent in the Second Appellate District and persuasive elsewhere in California. Subsequent California Court of Appeal decisions have reinforced the framework for restrictive on-call patterns.

Frequently asked questions

Is on-call time always compensable under the FLSA?

No. On-call time is compensable only when it is so restrictive that the employee cannot use the time effectively for their own purposes. The rule comes from 29 CFR §785.17 and Skidmore v. Swift & Co., 323 U.S. 134 (1944). Whether a given on-call period meets that standard is a question of fact decided by totality of circumstances.

Does a 15-minute response window automatically make on-call time compensable?

No. The Ninth Circuit in Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir. 1994), held that a 15-minute response requirement on otherwise non-restrictive facts (deputies could sleep at home, eat with family, engage in personal activities, trade calls) was not enough to make the standby compensable under federal law. Other federal courts on different facts have found 15-minute response windows compensable when paired with geographic restrictions, frequent calls, or other restrictions. The window is one factor in the Skidmore totality.

Can an employer pay a flat on-call stipend instead of hourly wages for compensable on-call time?

No. A stipend does not substitute for the underlying compensable hours. The federal minimum wage and overtime obligations apply to the hours worked; the stipend must be included in the regular rate for overtime computation under 29 CFR §778.208–§778.209. In California, the underlying hourly rate is owed in addition to the stipend for compensable standby hours, with the stipend then factored into the regular rate for daily and weekly overtime triggers.

When does the 29 CFR §785.22 sleep-time deduction actually apply?

Four conditions, all required: (1) the shift is 24 hours or more; (2) the employer and employee have agreed (in writing or by past practice) to exclude the sleeping period; (3) adequate sleeping facilities are furnished; (4) the employee usually enjoys an uninterrupted night's sleep, with at least 5 hours of consecutive sleep. Interruptions count as hours worked. Less than 5 hours of consecutive sleep voids the entire scheduled sleep period as compensable.

Does the §785.22 sleep-time deduction apply in California?

No, for the Mendiola pattern of on-premises 24-hour duty. The California Supreme Court in Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015), held that all 24 hours of on-premises 24-hour security-guard duty are compensable under IWC Wage Order 4 and that the federal §785.22 sleep-time deduction does not displace California's broader "subject to control" hours-worked definition.

What's the 8-and-80 rule under FLSA §7(j)?

29 USC §207(j) permits hospitals and residential-care institutions to compute overtime over a 14-day period instead of the standard 7-day workweek. Overtime is owed for hours in excess of 8 in any workday AND in excess of 80 in the 14-day period. The election requires a written agreement reached before the work is performed (29 CFR §778.601). When compensable on-call hours enter the calculation, the daily-8 trigger fires earlier and the regular-rate math changes.

How does the §7(k) public-safety exemption affect police and fire on-call?

29 USC §207(k) + 29 CFR Part 553 permit a 7- to 28-day work period instead of the standard 7-day workweek for fire and law-enforcement personnel employed by a public agency. Overtime is owed when the maximum hours for the chosen work period (e.g., 212 hours in 28 days for fire) are exceeded. Compensable on-call hours count toward the maximum. Most police/fire disputes turn on the §7(k) period definition rather than Skidmore doctrine; state law and collective bargaining agreements often supersede the federal floor.

What records does the employer need to keep for on-call time?

29 CFR §516.2 requires the employer to record all hours worked, including compensable on-call time. The Anderson v. Mt. Clemens Pottery burden-shifting rule, 328 U.S. 680 (1946), applies: if records are inadequate, the employee can establish unpaid hours by "just and reasonable inference" and the burden shifts to the employer. Platform metadata (PagerDuty, Opsgenie, ServiceNow logs; EMR access timestamps; security-system event logs) creates the exact-time data that the regulation requires and the Mt. Clemens rule rewards.

If You Discover You've Been Doing This Wrong

On-call audits routinely uncover accumulated exposure: standby time that should have been compensable under Skidmore, sleep-time deductions that fail the §785.22 conditions in retrospect, on-call stipends that should have been included in the regular rate, California on-premises duty without the Mendiola adjustment. The unwinding playbook:

1. Audit by employee work location. Pull on-call rotation records, PagerDuty / Opsgenie / EMR access logs, call response times, and active-engagement timestamps for the full statute period (2 years federal, 3 years if the violation is willful under 29 USC §255(a), 4 years in California under the §17200 unfair-competition borrowing rule). For California employees, every minute of working-while-on-call counts under Troester.

2. Apply the Skidmore factors to each on-call schedule. Identify which standby periods are likely Skidmore-compensable: response time, geographic limits, frequency of calls, personal-activity restrictions, ability to trade shifts. Document the analysis for each schedule type and each work location.

3. Pay back wages voluntarily. Self-correcting before a claim is filed is admissible as evidence of good faith and can defeat the willfulness finding that triggers the third year of liability under §255(a) and the doubling under §216(b). Federal recoveries include back pay plus liquidated damages (effectively double the back pay); California adds the Labor Code §203 waiting-time penalty (up to 30 days' wages) for any unpaid wages on termination, plus unfair-competition treble damages exposure under Business and Professions Code §17200. Voluntary payment can eliminate the multipliers.

4. Restructure on-call schedules where exposure is concentrated. California 24-hour-duty patterns may need to be split into separate shifts. Tight-SLA tech rotations may need looser SLAs, true-handoff schedules, or compensated standby. Healthcare 24-hour staffing may need to satisfy the §785.22 conditions or treat the sleep period as hours worked. The structural fix often costs less than the back-pay tail across the statute period.

5. Consult counsel for class-action exposure. Rough rule: more than 10 employees in California with consistent on-call patterns, or any systematic standby under-tracking across a multi-site workforce, crosses into class-action territory. The Tyson Foods v. Bouaphakeo, 577 U.S. 442 (2016) representative-evidence rule plus the Mt. Clemens burden-shifting rule make class certification dramatically easier when employer records are deficient.

The bottom line

On-call exposure has three structural failure modes: paying a stipend without analyzing the underlying compensable hours; failing the §785.22 sleep-time-deduction conditions on 24+ hour duty; and California 24-hour duty under the Mendiola rule where the federal sleep-time safe harbor does not apply. Each is a routine class-action target; together they account for the majority of seven-figure on-call settlements in healthcare, security, and IT.

For multi-state employers, the highest-leverage move is the same as for overtime, breaks, sick leave, and off-the-clock work: standardize to the strictest applicable rule. A California-baseline on-call policy — all standby time recorded, no §785.22 deduction, Skidmore analysis on every schedule type, stipend included in the regular rate, daily-overtime trigger respected — satisfies every other state's requirement. The marginal labor cost is small; the elimination of per-state policy complexity and the defensive posture against the Mt. Clemens burden shift are large.

Sources

Federal

• 29 CFR §785.16 — Off duty (waiting time)
• 29 CFR §785.17 — On-call time
• 29 CFR §785.20 — General
• 29 CFR §785.21 — Less than 24 hours on duty
• 29 CFR §785.22 — Duty of 24 hours or more (sleep-time deduction)
• 29 CFR §785.23 — Employees residing on employer's premises or working at home
• 29 CFR §785.47 — De minimis
• 29 USC §203 — FLSA Definitions
• 29 USC §207(a) — Maximum hours / overtime
• 29 USC §207(j) — Hospital 8-and-80 alternative
• 29 USC §207(k) — Public-safety exemption
• 29 USC §213(b)(1) — Motor carrier exemption
• 29 USC §255(a) — Statute of limitations (willfulness)
• 29 USC §216(b) — Liquidated damages
• 29 CFR §516.2 — Employer recordkeeping
• 29 CFR §553.200–.233 — Public-safety exemption regulations
• 29 CFR §553.230 — Maximum hours standards for work periods of 7 to 28 days
• 29 CFR §778.115 — Two regular rates (weighted average)
• 29 CFR §778.208 — Inclusion of bonuses in regular rate
• 29 CFR §778.209 — Method of inclusion of bonus
• 29 CFR §778.601 — Hospital 8-and-80 implementation
• DOL Fact Sheet #22: Hours Worked Under the FLSA

State

• California Labor Code §510 — Daily overtime
• California Labor Code §1198 — Wage Order enforcement
• California IWC Wage Order 4 (Professional, Technical, Clerical)
• California DIR — Hours Worked definition
• NYLL §663 — Civil action; right of action
• 12 NYCRR Part 142 — Minimum Wage Order for Miscellaneous Industries
• 12 NYCRR §142-2.3 — Call-in pay
• WAC 296-126-002 — Definitions including "hours worked"
• RCW 49.12.480 — Hospital meal and rest breaks (HB 1155)
• ORS 653.010 — Definitions including "hours worked"
• OAR 839-020-0040 — Hours worked rules
• MGL c.151 §1A — Definitions
• MGL c.149 §150 — Treble damages provision
• 940 CMR 27.04 — Massachusetts reporting-time pay
• Texas Workforce Commission — Waiting or On-Call Time
• N.J.A.C. 12:56-5.7 — On-call time
• 820 ILCS 105 — Illinois Minimum Wage Law
• 7 CCR 1103-1 — Colorado COMPS Order
• 43 P.S. §333.101 — Pennsylvania Minimum Wage Act
• Conn. Gen. Stat. §31-58 — Connecticut Minimum Wage definitions

Case law

• Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) — burden-shifting rule when employer recordkeeping is inadequate.
• Skidmore v. Swift & Co., 323 U.S. 134 (1944) — totality-of-circumstances test for on-call and waiting time.
• Armour & Co. v. Wantock, 323 U.S. 126 (1944) — companion case applying the same totality test to private firefighters.
• Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir. 1994) — restricted off-premises on-call (15-minute response on otherwise non-restrictive facts) NOT compensable under FLSA.
• Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015) — on-premises 24-hour security-guard on-call fully compensable in California; federal §785.22 sleep-time deduction does not apply to California state-law claims.
• Troester v. Starbucks Corp., 5 Cal.5th 829 (2018) — California rejects federal de minimis doctrine.
• Ward v. Tilly's, Inc., 31 Cal.App.5th 1167 (2019) — call-in on-call shifts trigger California reporting-time pay even when employee is not put to work.
• Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016) — representative evidence permissible in FLSA class actions when employer records are deficient.
• Home Care Association of America v. Weil, 799 F.3d 1084 (D.C. Cir. 2015) — upholding the 2013 amendment narrowing the FLSA domestic-service exemption for third-party-agency home-care workers.