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A worker who is required to be “on call” and is paged up to 50 times per week is entitled to overtime compensation if a jury finds that such duties are a “significant interference” with his personal life, a Pennsylvania federal judge has ruled. In his 20-page opinion in Harris v. Mercy Health Corp., Senior U.S. District Judge Thomas N. O’Neill Jr. refused to dismiss claims under the federal Fair Labor Standards Act, Pennsylvania’s Minimum Wage Act of 1968 and Pennsylvania’s Wage Payment and Collection Law. “The record before me contains nothing which would preclude a reasonable jury from finding that plaintiff was paged, on average, 50 times a week as he contends. Fifty pages over the course of a week means that plaintiff received, on average, over seven pages a day, each requiring him to spend anywhere from 10 to 40 minutes of his time,” O’Neill wrote. “Such interference with an employee’s personal life, if proved, could reasonably be deemed ‘significant,’ even in light of plaintiff’s ability both to carry a beeper and to shift, on occasion, his on-call duties to a designee,” O’Neill wrote. In the suit, James L. Harris claims he was hired in February 1978 as the coordinator and clinical manager of Mercy’s addictive services unit, a subdivision within the department of psychiatry. Later, Harris was given a pager so that he could respond to admissions and insurance reimbursement issues which arose at the ASU after regular business hours. When he was first presented with the pager, Harris says he approached the hospital’s assistant administrator and asked whether carrying the pager would entitle him to additional compensation. He claims he was told that as a management-level employee he was exempt and therefore not entitled to on-call compensation. In early 1995, after obtaining a copy of Mercy’s policy regarding on-call compensation, Harris says he approached the hospital’s director of the department of psychiatry and again requested compensation for time spent on call, but was once again told he was exempt. In November 1996, the ASU was disbanded, and Harris was laid off. A revamped detox center was opened in April 1997, but Harris was not offered a position. After Harris sued, Mercy’s lawyers — A. James Johnston and Margret M. Hagar of Philadelphia’s Post & Schell — moved to dismiss on the grounds that Harris is an exempt employee under the FLSA and the PMWA. O’Neill found that the FLSA provides an exemption from overtime compensation for any employee employed in a “bona fide executive, administrative or professional capacity” as defined by the Secretary of Labor. The PMWA also provides an exemption for employment in a bona fide executive, administrative or professional capacity. But because the FLSA is a remedial act, O’Neill found that its exemptions “are narrowly construed” and that “the employer bears the burden of proving that its employees fall within an exempted category.” Under regulations promulgated by the Secretary of Labor, O’Neill said, one requirement for exempt status is that the employee earn a specified minimum amount on a “salary basis.” Mercy’s lawyers pointed to payroll records and argued that Harris met the salary basis test. But Harris’s lawyers — Jeffrey P. Bates and Richard M. Squire of Abrahams Loewenstein & Bushman in Philadelphia — argued that the same records support their contention that Harris was an hourly employee. O’Neill found that the payroll records “do provide conflicting evidence.” The records, he said, showed that Harris was credited for eight hours of work each day and was not required to “clock in” or “clock out.” But Harris was also listed as having an hourly rate of $22.048 and was described in the records as an hourly employee. O’Neill also noted that the records showed different hourly rates of pay for day, evening and night hours. Mercy argued that the hourly rate on Harris’s records simply reflects payroll management policies. Hospital payroll officials testified that the payroll management software they use requires that an hourly rate of pay be designated for all employees — salaried and non-salaried alike. But O’Neill said Mercy did not address Harris’s “apparent classification as an hourly employee” or the “differing hourly rates provided for day, evening and night work.” Looking at all the evidence, O’Neill found there was a genuine dispute that must be resolved at trial. “A jury could reasonably find for plaintiff on this issue based on the employment records alone…. As plaintiff is entitled to have all reasonable inferences drawn in his favor, I cannot say that as a matter of law plaintiff was a salaried employee who falls within the executive, administrative, or professional exemption under the FLSA,” O’Neill wrote. ‘ON-CALL’ TIME Mercy’s lawyers next argued that even if Harris is not exempt, the time he spent on call is not compensable under the FLSA. O’Neill found that the controlling case on that point is the 3rd U.S. Circuit Court of Appeals’ decision in Ingram v. County of Bucks, which set forth a four-factor analysis to be used when determining whether time spent by an employee waiting on call is compensable under the FLSA. The four factors are: whether the employee may carry a beeper or leave home; the frequency of calls and the nature of the employer’s demands; the employee’s ability to maintain a flexible on-call schedule and switch on-call shifts; and whether the employee actually engaged in personal activities during on-call time. If application of the four factors reveals “burdensome on-call policies” and “significant interference with an employee’s personal life,” O’Neill said, then “time spent on-call is compensable.” Harris was allowed to carry a beeper and to leave his home. Since the beeper’s range was limited to a radius of 50 miles, he would make periodic calls to the ASU when he left that 50-mile radius. He was also allowed, under the hospital’s admissions policy, to delegate after-hours on-call duties to other ASU counselors. But Harris testified that he did not attempt to delegate his after-hours, on-call responsibilities because he could not ask his counselors to do so when he believed they would not be compensated for it. O’Neill found that the “frequency and urgency of the pages” Harris received was “unclear.” Harris testified that he was on call whenever he left the ASU, 24-hours a day, seven days a week. While on call, he said that he received and handled at least 50 calls per week and that each page required him to spend from 10 to 40 minutes determining whether a particular patient’s insurance would cover admittance to the ASU. But Mercy insisted that Harris received only five or six calls per week, citing the testimony of a former night nurse at the ASU. Harris’s lawyers, however, said the same nurse also testified that before the rise of managed care in the early 1990s, she had to page Harris more frequently — as many as 15 times a week. They also pointed to testimony from the director of the department of psychiatry, who said that it was possible that Harris was paged up to 50 times per week O’Neill found that the nurse’s testimony also failed to account for the times between 5 p.m., when Harris left work, until 11:30 p.m., when she started her shift, or during the weekend. Applying the “fact-specific analysis” laid out in Ingram, O’Neill found that summary judgment was inappropriate. “In Ingram the Court of Appeals found that all four factors weighed in favor of finding the on-call time at issue non-compensable. That is not the case here,” O’Neill wrote. Since a jury could agree that Harris received up to 50 pages per week, O’Neill said it could also reasonably find that being on call was a “significant” interference with his personal life. In Renfro v. City of Emporia, O’Neill said, the 10th U.S. Circuit Court of Appeals held that the on-call time was compensable because the frequency of calls — three to five times a day — significantly restricted an employee’s personal schedule. By contrast, O’Neill said, the 3rd Circuit noted that the plaintiffs in Ingram “were not able to demonstrate that the frequency of calls approached three to five calls to duty per day like Renfro.” But O’Neill found that Harris’s claims were partially barred by the statute of limitations. The FLSA, he said, provides that an action for overtime compensation must be commenced within two years, “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” The limitations period under the PMWA and the PWPCL is three years and begins to run from the date delinquent payment was due. Harris’s lawyers that the three-year-limitations period applicable to willful violations should apply to his FLSA claims. But O’Neill said the U.S. Supreme Court has held that an employer’s violation of the FLSA is willful only if “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Harris, he said, “fails to point to any evidence which supports the conclusion that defendant acted willfully when it rejected his claims for on-call compensation.” Since Harris filed suit on Dec. 23, 1996, O’Neill ruled that his claim for overtime compensation under the FLSA is limited to a two-year period lasting from Dec. 23, 1994 to Dec. 23, 1996.

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