Does an employer have to pay employees for on-call time?

Short answer: Sometimes. Under federal law (which Texas follows), an employer must pay employees for on‑call time only if the on‑call restrictions are so limiting that the employee cannot effectively use the time for personal purposes. If the employee is merely waiting to be contacted and remains largely free, the time is generally not compensable.

Governing Law

Fair Labor Standards Act (FLSA)

The Fair Labor Standards Act requires employers to pay non‑exempt employees for all “hours worked,” including certain waiting or on‑call time. 29 U.S.C. §§ 206–207.[6]

The key regulatory provisions are found in 29 C.F.R. Part 785, particularly §§ 785.15–785.17.[1][6]

Legal Standard: “Engaged to Wait” vs. “Waiting to Be Engaged”

Courts and the U.S. Department of Labor apply a fact‑specific test:

Engaged to wait (compensable): The employee’s time is so restricted that it is effectively controlled by the employer.
Waiting to be engaged (not compensable): The employee can use the time for personal activities, even though they must remain reachable.

This framework originates from the Supreme Court’s decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944).[1]

“The critical question is whether the employee can use the on‑call time effectively for his or her own purposes.”[1]

When On‑Call Time Must Be Paid

On‑call time is generally compensable when:

The employee must remain on the employer’s premises, or
The employee must stay so close to the worksite that personal activities are severely restricted, or
The response time is extremely short and calls are frequent enough to meaningfully disrupt personal life.

Department of Labor regulations state:

“An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while ‘on call.’”[6]

Examples include hospital staff required to stay in on‑call rooms or employees prohibited from leaving a narrow geographic area.[2][3]

When On‑Call Time Does Not Have to Be Paid

On‑call time is usually not compensable when:

The employee may stay at home or go about personal activities,
The employee only needs to leave contact information or carry a phone/pager, and
Calls are infrequent and response times are reasonable.

The Department of Labor explains:

“An employee who is required to remain on call at home, or who is allowed to leave a message where he or she can be reached, is not working (in most cases) while on call.”[2]

Texas and Fifth Circuit Authority

Bright v. Houston Northwest Medical Center (5th Cir. 1991)

The Fifth Circuit (which governs Texas) applies a relatively strict standard. In Bright, a technician was on call 24/7, required to carry a pager, restrict alcohol use, and respond within 20–30 minutes. Despite these burdens, the court held the on‑call time was not compensable because the employee could still conduct personal activities and was paid for actual call‑ins.[1]

This case is routinely cited as controlling authority in Texas.[1]

Wesley v. Experian Information Solutions, Inc. (Tex. App. 2021)

A Texas court similarly refused to require compensation for all on‑call hours where restrictions were minimal and employees were paid for time actually spent responding to calls.[5]

Pay Structure and Overtime Considerations

If on‑call time is compensable:

Employers may pay a lower rate for on‑call hours (but not below minimum wage), if clearly agreed to in advance.[1]
Compensable on‑call hours count toward overtime calculations for non‑exempt employees.[1][6]

Texas Law

Texas does not have a separate state statute expanding on‑call pay rights beyond the FLSA. As a result, federal law fully controls for private‑sector employees.[7]

(Some Texas government agencies provide on‑call pay by policy, but those policies do not apply to private employers.[4]

Bottom Line

In Texas:

✅ On‑call time must be paid if the employee’s freedom is substantially restricted.
❌ On‑call time does not have to be paid if the employee can effectively use the time for personal purposes and is paid for actual call‑ins.

Each situation is highly fact‑specific, and small differences in restrictions can change the legal outcome.