Las Vegas POA

Deputy’s On-Call Time Not Compensable Under FLSA

Written on 01/06/2021
Will Aitchison

Joseph Caiazza was a deputy sheriff with the Lee County, Florida Sheriff’s Department. Before his retirement, Caiazza worked on Captiva and Sanibel Islands (the “Islands”). The Islands had only one other patrol officer, along with a supervisor who had mostly administrative duties.

Every 14 days, the Sheriff scheduled Caiazza for seven 12-hour shifts of active patrol, each followed by a 12-hour on-call period. One day every week, Caiazza was on call. When on call, Caiazza had to respond to call outs within one hour. Given geographical reality, this restricted Caiazza to the Islands and their surrounding waters while on call.

To facilitate his job, Caiazza lived in a condo on Captiva. After a shift, Caiazza turned off his radio to charge it and dispatchers notified him of call outs on a work cell phone. While not required, Caiazza regularly watched his work computer for call outs too because notifications sometimes appeared in that system before the dispatcher could make a call. Even when not on call, Caiazza could receive call outs to serve as backup. When on call, Caiazza could not drink alcohol.

Caiazza sued, claiming he was entitled to overtime under the FLSA for his on-call time. A federal district court disagreed.

The Court held that the Department of Labor’s FLSA regulations “explain on-call time spent at home. Such time ‘may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, a firefighter has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee’s activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.’ At bottom, for on-call time to be work time, an employee’s use of the time must be severely restricted.

“Here, the restrictions were not severe enough to transform Caiazza’s on-call time into work time. Mainly, Caiazza contends he was on call for 24 hours at a time and had to monitor his computer constantly, which prevented him from pursuing personal activities. Yet the Sheriff did not impose significant restrictions on Caiazza, who could use on-call time for his own benefit. According to Christopher Lusk (the Islands’ other patrol officer), he spent on-call time reading, watching TV or movies, cooking, entertaining guests, visiting friends, eating out, shopping, playing with his kids, fishing (on or near the Islands), exercising, and sleeping.

In other words, Lusk used on-call time primarily for his benefit rather than the Sheriff’s. While Caiazza blankly states he could not do similar activities, he never explains why. The Sheriff imposed no restriction on those activities.

“Rather, Caiazza seems to claim he could not engage in any activities because he might be interrupted while doing so. For instance, Caiazza contends he was restricted from simply watching a TV show because if a call came in, he would have to leave during the show. Likewise, he claims grilling was out of the question because there was a chance he might have to turn the grill off. Neither of these is an instance in which the Sheriff’s demands were so restrictive that Caiazza could not engage in those activities. Instead – like all on-call employees – there was just a chance Caiazza’s pursuit might be interrupted.

“But if the mere chance of interruption alone is enough to convert on-call time to FLSA compensable time, then all on-call time is compensable. This would ignore the case law and regulations, which clarify an employee’s free time must be severely restricted for off-time to be construed as work time. At bottom, the possibility a work call will disrupt an employee’s pursuits is an inconvenience every on-call employee must deal with. As a matter of law, an employee is not ‘working’ simply because that employee must be on call if needed.”

Caiazza v. Marceno, 2020 WL 5892019 (M.D. Fla. 2020).

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