Resident Watchman Not Entitled to 24/7 Wages

By Roger S. Achille Jun 12, 2018
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​An employer did not violate the Fair Labor Standards Act by failing to pay its employee wages for watchman services for the entire time the employee was required to reside on the employer's premises, because some of the employee's time was spent predominantly for his benefit.  

The plaintiff and Gorman-Lavelle Corporation (GL) entered into an employment agreement requiring him to live at a residence on the premises of GL's business to be reasonably available to perform "watchman services," as that term was defined in the agreement. The employment agreement specified that he was not required to be present in or at the residential premises at any designated time or times, and when he was present in the residential premises, the employee and GL agreed that he was not working for GL.

The employee's use of the premises was identified in the employment agreement as his "sole compensation" for the performance of the watchman services. The employment agreement included a provision for when he was away from the premises, such as for vacations, overnight absences and "unusual requests," outlining preferred-notice requirements in each case. In addition, the plaintiff was to be available by phone at all times and to provide immediate notification to GL of any security, unusual or potentially dangerous situations. The plaintiff argued that he never received any wages for watchman services, 14 hours per day on weekdays and 24 hours per day on weekends, but conceded that he did not report such services to GL for payment because he was provided no mechanism for doing so.

Time spent at home but on call may be compensable if the restrictions attendant to the on-call status are so onerous as to prevent the employee from effectively using his or her time at home for personal pursuits; however, the fact that time spent on-call may have had some effect on the employee's ability to engage in some activities is not enough to show that such time is compensable. The inquiry is whether the time at issue was spent "predominately for the employer's benefit or for the employee's benefit."

[SHRM members-only HR Q&A: What must be included as "hours worked" when calculating weekly overtime?]

The court emphasized that the employment contract did not require the plaintiff to spend any specific amount of time on the premises, nor to undertake any specific proactive investigative or monitoring activities. The employment contract also clearly contemplated that the plaintiff would regularly be absent from the premises on his own schedule and for his own reasons, giving GL no authority to grant or deny "permission" for any absence but rather merely require the plaintiff to afford some advance notice. He acknowledged that he was not required to be in the residence between 5 p.m. and 8 a.m. and further conceded that no one from GL monitored, supervised or restricted his activities during those hours, except for the provision that no one but the plaintiff and his children could reside at the premises and a requirement that he obtain approval in advance for having overnight guests.

"Plainly", the court remarked, "the residency requirement here was not so burdensome as to effectively preclude him from living as he pleased during his time on the premises, including the complete freedom to be totally away from the premises whenever he wished with no restrictions save a reasonable prior notice of his planned absence and that he be available by phone." As a matter of law, the court concluded, the plaintiff was not working for compensation by being required to reside on the premises.

Glabecki v. Gorman-Lavelle Corp., N.D. Ohio, No. 1:15 CV 2181 (May 21, 2018).

Professional Pointer: Whether an employee is free to use time for personal pursuits while on-call depends on the facts in each case, notwithstanding the provisions of any written contract. As such, employers should clearly articulate working hours or what conditions constitute working status in any employment agreement.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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