On-call pay laws: when your unpaid standby time is legally “hours worked”

Yes — on-call time must be paid when your employer's restrictions are tight enough that you are not really free to use the time for your own purposes. The single question that decides almost every on-call case is control: if the company dictates where you can be, how fast you must respond, whether you can drink, travel, sleep, or make plans, then those standby hours are “hours worked,” they count toward the 40-hour overtime threshold, and unpaid ones are recoverable wages.

That rule matters enormously to water damage mitigation and restoration technicians, emergency plumbers, HVAC service techs, and 24-hour dispatchers — trades built on the premise that someone is always ready to roll. Employers in these industries routinely treat the entire on-call rotation as free labor and pay only for the minutes a technician is physically on a job. Courts have repeatedly rejected that arrangement.

The federal test: “engaged to wait” vs. “waiting to be engaged”

The Fair Labor Standards Act requires overtime at one and one-half times the regular rate for all hours worked beyond 40 in a workweek (29 U.S.C. § 207(a)). The statute never defines “work,” so the Supreme Court did — in a pair of 1944 cases involving firefighters who spent long stretches on company premises doing nothing but being available.

Readiness to serve may be hired, quite as much as service itself.

One who is employed to wait is working; one who waits to be employed is not. Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.

The Department of Labor codified that distinction in its interpretive regulations. Under 29 C.F.R. § 785.17, an employee who must remain “so close to the employer's premises that he cannot use the time effectively for his own purposes is working while on call.” By contrast, an employee who only has to leave word where they can be reached is generally not working while on call. Sections 785.14 through 785.16 apply the same waiting-time logic to idle time and to periods when equipment is down.

Two important consequences follow. First, compensable on-call hours are not a separate bucket of pay — they are hours worked, so they stack on top of your scheduled shifts and can push a 38-hour week deep into overtime territory. Second, a written policy declaring on-call time unpaid does not control the outcome. The regulation asks what the restrictions actually do to your life, not what the handbook says.

The factors courts actually weigh

The Ninth Circuit — whose decisions cover California, Nevada, Arizona, Washington, and Oregon — set out the working framework in Owens v. Local No. 169, 971 F.2d 347 (9th Cir. 1992). The court asks two things: whether the parties agreed the time would be paid, and, far more importantly, the degree to which the employee is free to engage in personal activities. That second inquiry is broken into concrete factors:

1. Whether the employee must live on or remain at the employer's premises.
2. Whether geographic restrictions on the employee's movement are excessive.
3. Whether the frequency of calls is unduly restrictive.
4. Whether a fixed response-time limit is unduly restrictive.
5. Whether on-call duty can easily be traded with a coworker.
6. Whether a pager, phone, or app eases the restrictions.
7. Whether the employee actually engaged in personal activities during on-call time.

Berry v. County of Sonoma, 30 F.3d 1174 (9th Cir. 1994) applied that framework to on-call coroners and confirmed that the analysis is fact-intensive and case-specific — which is exactly why documentation of your real-world restrictions is the difference between a strong claim and a weak one.

Outcomes across the circuits show how sharply the facts matter. In Renfro v. City of Emporia, 948 F.2d 1529 (10th Cir. 1991), firefighters on 24-hour on-call periods with a 20-minute response requirement and an average of three to five callbacks per period won: the frequency of calls alone made the time compensable. In Bright v. Houston Northwest Medical Center, 934 F.2d 671 (5th Cir. 1991), a biomedical equipment repair technician who was effectively always on call with a roughly 20-minute response window lost, because he could be anywhere in the metropolitan area and was rarely called. Response time in isolation rarely decides a case. Response time plus geography plus call volume usually does.

California is stricter — and it is where most restoration claims are strongest

California does not use the federal “effective use of the time” framing. Its wage orders define “hours worked” as the time an employee is subject to the control of the employer, including all the time the employee is suffered or permitted to work (IWC Wage Order 4-2001 § 2(K); parallel language appears in every wage order). Control alone is enough.

Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015) is the landmark. Construction-site security guards lived in trailers and were on call overnight; the employer paid them only when they were actively responding to an alarm. The California Supreme Court held their entire on-call time was compensable hours worked, and further held the employer could not exclude sleep time from those hours under California law — a rule that departs from the federal sleep-time exclusion in 29 C.F.R. § 785.22.

Employees who are subject to an employer's control do not have to be working during that time to be compensated.

Ward v. Tilly's, Inc., 31 Cal. App. 5th 1167 (2019) extended the logic to on-call scheduling: employees required to call in two hours before a possible shift were “reporting for work” and owed reporting-time pay, because the call-in itself constrained their day. Frlekin v. Apple Inc., 8 Cal. 5th 1038 (2020) held mandatory bag-search time compensable in California even though the Supreme Court had reached the opposite federal result in Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014). And Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000) held that compulsory employer-directed travel is compensable — directly relevant to techs required to drive a company vehicle to a staging yard before a callout.

Water damage mitigation and restoration technicians

Restoration is a response industry. Insurance carriers and the widely used IICRC S500 standard for professional water damage restoration push contractors toward same-day arrival to stop microbial growth, so companies build on-call rotations with tight windows — commonly 30 to 60 minutes from dispatch to rolling. Technicians are told to stay near the shop, keep the truck loaded and fueled, stay sober, and answer the first ring.

That is the fact pattern of Owens v. Local No. 169, 971 F.2d 347 (9th Cir. 1992), almost line for line, analyzed under 29 C.F.R. § 785.17 — and in California under Mendiola v. CPS Security Solutions, 60 Cal. 4th 833 (2015): geographic tether, short fixed response time, high call frequency during storm and freeze events, company equipment in the driveway, and no swapping without approval. Add California's control standard and the analysis rarely turns close.

The industry has already paid for it. In Rodriguez v. BELFOR USA Group, Inc., No. 5:22-cv-02071 (N.D. Cal.), a nationwide FLSA collective and a California class of workers at a disaster property restoration company reached a settlement of more than $1.6 million covering more than 600 workers, on claims including unpaid overtime and missed meal and rest breaks. The court granted final approval on October 9, 2025. That is roughly $2,500 per worker on average, before considering that individual recoveries scale with individual hours.

On-call claims also travel well outside restoration. In 2026, Marathon Refining Logistics Services LLC — a Marathon Petroleum subsidiary — agreed to pay $9 million to resolve wage-and-hour claims brought by 748 current and former operators and lab workers at its Los Angeles refinery over mandatory “Primary Relief” standby shifts. Bloomberg Law reported the deal recovers close to $9,400 per class member on average, in a case filed in the U.S. District Court for the Central District of California. Different industry, identical legal theory: the company controlled the workers' standby time and did not pay for it.

Emergency plumbers and 24-hour service techs

Emergency plumbing runs on the same economics with an extra wrinkle: the dispatch app. Modern service companies push jobs through software that expects acknowledgment in minutes and logs every delay. Those logs are evidence. They document call frequency, response windows, and the fact that the company was actively monitoring your availability — the precise facts Owens factors three, four, and seven turn on.

• Take-home service vans. If you must keep the van at home, keep it stocked, and stay fit to drive it, your evenings are constrained in a way courts recognize.
• Travel time. Under federal law, ordinary home-to-work commuting is not compensable (29 U.S.C. § 254(a), the Portal-to-Portal Act), but travel from home directly to an emergency call after the workday is generally compensable time (29 C.F.R. § 785.36–785.39). California goes further under Morillion where the travel is employer-controlled.
• Callout minimums. Being paid a flat two-hour minimum per callout does not make the surrounding standby hours unpaid-able if those hours were themselves restricted.
• Regular-rate math. On-call and standby premiums generally must be folded into the regular rate used to compute overtime (29 C.F.R. § 778.223), so employers who pay a flat $50 stipend and then compute overtime on base wages alone often understate what is owed twice over.

What the money actually looks like

Work a realistic example. A restoration tech earns $22 per hour and already works 40 scheduled hours. She is on call five nights a week, roughly 12 hours per night, with a 45-minute response tether — and is paid nothing for that standby time unless dispatched.

1. Unpaid on-call hours per week: 5 nights × 12 hours = 60 hours.
2. Because her scheduled 40 hours are already used up, every on-call hour is an overtime hour: 60 × $33.00 (1.5 × $22.00) = $1,980 per week.
3. Over a two-year FLSA lookback (about 104 weeks): roughly $205,920 in unpaid overtime.
4. Liquidated damages under 29 U.S.C. § 216(b) generally double that figure absent a good-faith defense: roughly $411,840.
5. If the violation is willful, the lookback stretches to three years (29 U.S.C. § 255(a)); California Labor Code claims carry a three-year statute, and unfair-competition claims can reach four.
6. Attorney's fees and costs are recoverable by a prevailing employee under 29 U.S.C. § 216(b) — which is why these cases are typically handled on contingency.

Numbers that large usually get negotiated down, and courts frequently find some on-call hours compensable and others not. The point of the arithmetic is scale: even a partial finding on a fraction of those hours is life-changing money, and it is why an unpaid on-call rotation is one of the highest-value wage claims a tradesperson can hold.

For context on enforcement volume, the U.S. Department of Labor's Wage and Hour Division recovered $184,425,856 in FLSA back wages in fiscal year 2025, and $149,957,029 for 125,301 employees in fiscal year 2024 — the overwhelming majority of it for overtime violations. Those are only the cases the agency handled; private suits recover separately.

Deadlines: the clock is the whole game

Every week you wait, one week of recoverable wages falls off the back end. Federal claims must be filed within two years of the violation, or three if the employer's conduct was willful (29 U.S.C. § 255(a)). California Labor Code claims generally run three years (Cal. Code Civ. Proc. § 338(a)), extendable to four through the Unfair Competition Law. In an FLSA collective action, the clock generally keeps running for you until you file a written consent to join — being a member of someone else's lawsuit does not automatically stop it.

Waiting also costs a separate penalty in California: if you have already left the job, Labor Code § 203 adds up to 30 days of your daily wages when final wages were not timely paid — a distinct sum on top of the unpaid overtime.

Evidence to preserve now, before you do anything else

On-call cases are won with records of restriction. Under Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), when an employer fails to keep accurate records of compensable time, an employee may carry the burden with reasonable estimates — and the employer bears the consequence of its own recordkeeping failure. Your notes count.

• The written on-call policy, rotation calendar, and any text or email setting a response window.
• Dispatch app history and screenshots showing callouts, timestamps, and acknowledgment requirements.
• Phone records showing call volume during standby nights.
• Any discipline, warning, or coaching note tied to a slow response — proof the restriction was real.
• GPS or fleet-tracking reports for a take-home vehicle.
• A contemporaneous log: date, hours on call, calls received, plans you had to cancel.

Retaliation for asserting FLSA rights is separately unlawful under 29 U.S.C. § 215(a)(3), and California Labor Code § 98.6 provides parallel protection. Collect what you can lawfully access, and store it somewhere the employer does not control.

What to do next

1. Run the free On-Call Analyzer. Nine questions, and it scores your facts against the five factors courts weigh and matches them to the precedent above.
2. Load your documents into the Evidence Vault so nothing gets lost when a phone dies or a login is revoked.
3. Check your deadline. The FLSA lookback is already shrinking.
4. Talk to a wage-and-hour attorney licensed in your state. Fees in these cases are typically contingent and statutorily recoverable, so a consultation costs you nothing.