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February 20, 2009
Were On-Call Employees' Activities 'Substantially Restricted'?
A group of Maryland state employees, all serving as Juvenile Transportation Officers (JTOs) , demanded to be paid for the time they spent “on call.” Their grievance went to an Administrative Law Judge (ALJ), who ruled against them. They took their case to the state court of special appeals, which ruled that the ALJ had paid too little attention to state law on the topic. But the ALJ’s second decision was similar to the first, and the officers appealed again.

What happened. The 8 JTOs, who work in the Department of Juvenile Services, are each on call for 1 week out of 8. During that week, the on-call JTO carries a pager 24/7. When paged, he or she must respond by telephone within 30 minutes—and then the real work begins: The officer must provide 24-hour emergency transportation for night detention runs and medical appointments throughout all the youth centers in the state. So, after donning his or her uniform at home, the officer must than drive to a site where transport vans are kept, retrieve one and perform a safety inspection on it, and then drive to the juvenile’s holding place, reaching it within 2 hours.

On the weekdays of an on-call week, the officer works a regular 1-9 p.m. shift as well as answering any calls, which typically occur about twice a week. But officers testified they were unable to leave home while on call; they might have to drive 100 miles or more to the youth center or other location where the juvenile was and couldn’t do so within the time limit unless they were home. They described what they could not do when on call: attend church, club, and social activities; visit family members; eat in restaurants; watch children’s team sports; camp, hunt, or fish. Even a home improvement chore that could not be interrupted or was too noisy for the pager to be audible was a no-no.

The JTOs have always contended that the rigors of being on call mean that they deserve to be paid for that time. In fact, the relevant section of Maryland wage and hour law stipulates: “Work time includes time during which the employee … is not on the employer’s premises, but is on call and waiting for work, and the employee’s personal activities are substantially restricted.” In 2004, the ALJ first wrote, “While I agree the employees’ activities were restricted, I cannot find that their activities were substantially reduced.” He went on to cite the standard for such restrictions in the federal Fair Labor Standards Act (FLSA).

When the JTOs appealed, the circuit court noted that Maryland law is somewhat more generous toward employees in this regard than is federal law, so they sent the issue back to the ALJ for reconsideration. For example, they said, only the state law considers whether the employee’s personal activities are restricted before denying on-call compensation. By contrast, federal law states only that on-call time must be paid if the employee must remain on the employer’s premises. In the second ruling, the ALJ only studied the semantics of the state law—using a dictionary definition of “substantial”—and decided again against the plaintiffs. They appealed again.

What the court said. Appellate judges urged the ALJ to look at the employees’ claims from a more positive perspective. And, they noted, since JTOs’ activities during their on-call weeks are mostly restricted by their 1-9 p.m. regular work shifts, the ALJ should perhaps distinguish weekdays from weekends, which would be free if not for on-call duty. Further, they asked the ALJ to look at the most generous interpretations by the federal courts of appeal, and at Department of Labor opinion letters, about the FLSA provision.

However, they did note that the proliferation of cell phones since the JTOs’ on-call regulations were issued may have made their duties less onerous. Finally, they said, JTOs already work 40-hour weeks in their regular assignment when they’re on call, and the issue of overtime should be considered for other on-call hours. Hess et al. v. Department of Juvenile Services, Court of Special Appeals of Maryland, Nos. 2025 & 2043 (12/31/08).

Point to remember: State appellate judges cannot overturn the decision of an administrative official to whom the employees’ grievance was assigned; they can only ask that he or she reconsider.

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