On August 11, 2021, the Minnesota Supreme Court held that it is for a jury to decide. In Hagen v. Steven Scott Management, Inc., (yes, this is the same case I just wrote about for rent credits being wages), the plaintiff argued that all of her on-call time should be compensable because it was part of her “duties of employment”. The hours-worked rule (Minn. R. 5200.0120) generally provides that an employee who cannot use their time “effectively for the employee’s own purposes is working while on call”. However, Minnesota courts have not yet addressed the distinction (as in federal law) of, “being able to use one’s time effectively or not, while working on call”.
In this case, the employee had to carry an employer-provided cell phone, stay within a 20 minute radius of the apartment complex (her worksite), and could not drink alcohol. Further, certain activities such as grocery shopping would be occasionally interrupted from tenants seeking assistance, and her family all lived 30-45 minutes away so she could not visit them. The Court held that whether the mere act of being on-call was considered a duty of her employment was complicated because her job description lists, “working on an on-call basis,” as an essential duty. Ultimately, the Court held that reasonable persons could reach a different conclusion as to whether her on-call restrictions allowed her to use her time effectively for her own purpose – and thus, a jury must decide.
So what does this mean in the real world? Minnesota courts are not blindly following federal law (District of Minnesota) in determining whether on-call time is compensable under the MFLSA (compared to the FLSA). Further, the Court has stated that a jury must decide when on-call time is compensable (i.e. can the employee use the time effectively for their own use or not). This is an issue for employers as a claim for unpaid on-call time will almost certainly survive a motion for summary judgment – taking such questions to trial. As you can imagine, this increases the cost to litigate. Thus, employers should be careful to draft job descriptions and on-call policies (if employees are not paid to wait) to make it clear how they are – or are not – restricted during an on-call shift. For example, consider response times, prohibitions of activities during that time, and what they are required to do or not do. The more restrictions, the more the employee can argue they are duties of employment and thus, compensable. Check your handbook policies, job descriptions, and offer letters for on-call language and ensure it is accurate and the employee is properly compensated depending on how effectively they can use their on-call time for personal matters.