Norton v. Worthen Van Service, Inc.
Opinion of the Court
This is an appeal from the district court’s judgment dismissing plaintiffs’ claim for back wages under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (FLSA). Plaintiffs Floyd Norton, Robert Remmick,
I.
The facts are not in dispute. Worthen Van operates a van service throughout Wyoming and adjoining states transporting railroad crews to and from their trains. When the railroad needs a crew transported, a dispatcher telephones a driver who is responsible for quickly arriving at the Worthen Van facility. Drivers generally work shifts of eight to twelve hours a day. During these shifts, drivers must be near enough to the employer’s premises to be able to respond to calls within fifteen to twenty minutes. However, drivers are compensated for this waiting time only if they receive a call to transport railroad crews within two hours of their last call. If a driver fails to promptly respond to a dispatcher’s call, he is disciplined by the company. A driver may be fired if he is disciplined three times.
In February 1985, plaintiffs brought suit seeking back wages, overtime compensation, and liquidated damages. The trial court ruled that plaintiffs were entitled to be paid for time spent cleaning and inspecting vans but denied recovery because it found only the minimum wage provisions of FLSA applied to Worthen Van, and its employees had been paid at least a minimum wage for each week they had worked. The court also found that Worthen Van was exempt from paying overtime wages under the motor carrier exemption, 29 U.S.C. § 213(b)(1). Neither issue is before us on appeal. Finally, the trial court denied recovery of unpaid wages for waiting time. The court emphasized that time spent on call was primarily used for the benefit of the employees, since employees could leave the employer’s premises and pursue personal matters which did not interfere with their ability to quickly return to work.
II.
Plaintiffs argue that this final finding by the trial court is clearly erroneous and urge us to decide that waiting while on call constitutes an integral part of their job. The employees argue that the unpredictability of assignments and the short response time which they are allowed preclude their using this waiting period for their own purposes.
Whether periods of waiting for work should be compensable under the FLSA is to be determined by the facts and circumstances of each case. The FLSA simply defines “employ” as “to suffer or permit to work,” and does not further define the relevant terms. 29 U.S.C. § 203(g). Case law has focused on how close an on-call employee must remain to the employer’s premises or a work-related vehicle to be
The progeny of Armour and Skidmore further elucidate when waiting to work should be compensable. In Allen v. United States, 1 Cl.Ct. 649 (1983), aff'd, 723 F.2d 69 (Fed.Cir. 1983), the court determined that federal marshals should not receive compensation under the FLSA for being on call after their regular work day. In reaching this conclusion, the court emphasized that on-call federal marshals were free to pursue their individual pursuits subject only to the requirement that they remain sober and within range of their electronic beepers. Similarly, in Pilkenton v. Appalachian Regional Hosps., Inc., 336 F.Supp. 334 (W.D.Va. 1971), the court held that plaintiff laboratory technicians should not receive compensation for being on call because their freedom during these periods was circumscribed only by the requirements that they leave a phone number and arrive at the hospital within twenty minutes of receiving the call. See also Kelly v. Ballard, 298 F.Supp. 1301 (S.D.Cal. 1969) (awarded overtime for the period during which ambulance drivers were on call and required to remain at their station or by their ambulances).
These opinions indicate that plaintiffs should not recover for the time they are on call. The firemen in Armour had to remain on the employer’s premises, and in Skidmore, plaintiffs only had the choice of remaining in the firehall or staying within immediate hailing distance. Subsequent case law follows Armour and Skidmore by compensating employees who are required to remain either on the employer’s premises, in the immediate vicinity, or by a work-related vehicle. The Van Worthen employees, on the other hand, have more of an opportunity to pursue personal business between assignments, even if being on call does limit their activity. Testimony showed that drivers spent their time between assignments at the homes of friends, at church, at laundromats, at restaurants, at pool halls, and at a local gymnasium. Several plaintiffs testified that they pursued hobbies, such as working on guns or physical fitness, while waiting to be called by a dispatcher. Furthermore, a simple paging device, which the drivers are free to
We also believe Worthen Van made a significant effort to allow its drivers to use their waiting time effectively. Although on several occasions drivers were told by dispatchers to wait at the employer’s premises, in each instance the head dispatcher sat down with the driver and the ordering dispatcher and reiterated the “Worthen Van policy” that on-call drivers may wait anywhere so long as they can be reached. Drivers also had the option to “go unavailable” for a certain period of time during which they would not be called, or to drop to the bottom of the driving list, making it far more unlikely they would be called.
Even though a condition of the plaintiffs’ employment required a restriction on their personal activities, we believe the trial court correctly concluded this restriction did not constitute working time. Accordingly, the judgment of the district court is AFFIRMED.
. As the plaintiffs note in their brief:
There are a host of personal, private pursuits that cannot be accomplished due to the strict mandate that on-call drivers be available at a moment’s notice to respond to a call. For example, a driver who is waiting on call is effectively precluded from holding another job.... He is unable to take his children to the park to play, or to work on his car for fear he may not hear the phone, or to work on his car and otherwise be unable to drive it any-where_ An "on call” driver furthermore cannot safely invite people over to his house for dinner or to play cards, for example, because he must be available, on short notice.
. These two cases are factually similar to Handler v. Thrasher, 191 F.2d 120 (10th Cir. 1951), in which we granted overtime compensation to an oil pumper who was required to be on call at his employer’s oil field. The court specified that although the employee was probably not continually engaged in physical labor while on call, he had to be on the premises and ready to perform any function necessary to keep the wells pumping.
. The principles set forth in these cases have been summarized in the various rules promulgated by the Administrator, Wage and Hour Division, United States Department of Labor. Of these rules, which are not controlling on the courts but may be used for guidance, the most relevant states:
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.
29 C.F.R. § 785.17 (1985).
Reference
- Full Case Name
- Floyd NORTON, Arnold Pedersen, Robert Lee Remmick, and Steve Neiffer, on behalf of themselves and all other employees and former employees of Worthen Van Service, Inc. similarly situated v. WORTHEN VAN SERVICE, INC., a Wyoming corporation
- Cited By
- 37 cases
- Status
- Published