Pabst v. Oklahoma Gas & Electric Co.
228 F.3d 1128, 2000 Colo. J. C.A.R. 5510, 2000 U.S. App. LEXIS 23502 (2000)
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Rule of Law:
On-call time that requires employees to continually monitor automated alarms by pager and computer, with frequent calls and short response times, and significantly interferes with their personal pursuits, is compensable 'work' under the Fair Labor Standards Act (FLSA).
Facts:
- Plaintiffs Kathy Pabst, James Gilley, and Steve Barton worked as Electronic Technicians for Oklahoma Gas & Electric Company (OG&E).
- Prior to an August 1994 reduction in force, monitoring automated alarms for OG&E buildings required twelve on-site employees working three eight-hour shifts.
- After the August 1994 reduction in force, Pabst, Gilley, and Barton were required to monitor these alarms while on call during weekdays from 4:30 p.m. to 7:30 a.m. and twenty-four hours a day on weekends.
- During these on-call hours, alarms were sent to computers at Pabst and Gilley’s homes, and to pagers for all plaintiffs; after October 1994, Barton also received alarms via laptop computer at home.
- Plaintiffs were initially required to respond to alarms within ten minutes (later extended to fifteen minutes after October 1996), with failure to respond being grounds for discipline.
- The pagers provided to plaintiffs were only 70% reliable, and the short response time, coupled with unreliable pagers, forced plaintiffs to remain at or near their homes while on call.
- Plaintiffs received an average of three to five alarms per night, each taking an average of forty-five minutes to respond to, which severely disrupted their sleep habits and prevented them from pursuing many personal activities.
- Plaintiffs’ supervisor instructed them to report only on-call time spent actively responding to an alarm, and OG&E compensated them for at least one hour for each alarm responded to, or two hours if they had to return to OG&E facilities.
Procedural Posture:
- Kathy Pabst, James Gilley, and Steve Barton sued Oklahoma Gas & Electric Company (OG&E) in the United States District Court for the Western District of Oklahoma (the trial court/court of first instance).
- The district court found plaintiffs' on-call time compensable under the FLSA and awarded them compensation for fifteen hours per weekday and twenty-four hours per Saturday and Sunday, less any hours already paid.
- The district court limited recovery to a two-year limitations period, finding OG&E's FLSA violation was not willful.
- The district court refused to award liquidated damages, finding that the FLSA violation was reasonable and in good faith.
- OG&E, as the defendant, appealed the district court's rulings on liability, damages, and prejudgment interest to the Tenth Circuit Court of Appeals.
- Plaintiffs, as the cross-appellants, cross-appealed the district court's ruling denying liquidated damages and its finding of no willful violation to the Tenth Circuit Court of Appeals.
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Issue:
Does on-call time requiring employees to continually monitor automated alarms by pager and computer, with frequent call-backs and short response times that severely disrupt personal activities, constitute compensable 'work' under the Fair Labor Standards Act?
Opinions:
Majority - Lucero, Circuit Judge
Yes, the plaintiffs' on-call duties, which required continuous monitoring of alarms by pager and computer and significantly interfered with their personal pursuits, constitute compensable 'work' under the FLSA. The court applies the 'engaged to wait' versus 'waiting to be engaged' distinction, or, alternatively, whether the on-call time is spent predominantly for the benefit of the employer or the employee, a highly individualized and fact-based inquiry. OG&E's argument of lacking knowledge of the compensable on-call work is rejected as disingenuous, given that OG&E created the on-call system and implicitly restricted reporting of full on-call hours. The court found Davis v. Food Lion inapplicable because that case involved an explicit prohibition on unrecorded work, unlike the present on-call scenario. The district court's finding that no effective rotational schedule existed was affirmed, noting significant overlap in reported overtime hours. The court relied heavily on Renfro v. City of Emporia, finding the current case analogous due to similar call frequency (three to five alarms per on-call period) and the requirement to take action (by computer) within fifteen minutes. The continuous nature of the on-call duty (all off-premises time) for the plaintiffs in this case was deemed to offset the slightly lighter burden of not always having to physically report to the workplace compared to the firefighters in Renfro. The argument that time spent in personal pursuits should be subtracted from compensable hours was rejected, as the inquiry is whether the time predominantly benefits the employer, not an hour-by-hour accounting. The court also affirmed the district court’s denial of liquidated damages and finding of no willful violation, applying an abuse of discretion standard for liquidated damages and clear error for willfulness, based on OG&E paying double time for reported work, allowing a minimum hour for short responses, and potentially operating under a mistaken but good faith belief about the on-call system's compensability and the existence of a rotational schedule.
Analysis:
This case reinforces the fact-intensive nature of FLSA on-call compensability, clarifying that continuous remote monitoring duties, coupled with frequent interruptions and short response times, can transform otherwise non-compensable 'waiting to be engaged' time into compensable 'engaged to wait' time. The decision limits an employer's ability to claim ignorance of FLSA violations when they create the on-call system and implicitly restrict reporting of full on-call hours. It underscores that the interference with an employee's personal life, even without requiring physical presence at the workplace, is a critical factor in determining compensability.
