Pabst v. Oklahoma Gas & Electric Company

We again explore the question of when "on-call" time becomes sufficiently onerous to render it compensable under the Fair Labor Standards Act ("FLSA"). Surveying our precedents and applying them to the facts of this case, we conclude that plaintiffs' on-call duties requiring them to continually monitor automated alarms by pager and computer were compensable under the FLSA. In so holding, we reject the argument that on-call monitoring time is not compensable unless contemporaneously reported to the employer as overtime. Further, we uphold the district court's determination that the employer's FLSA violation was not willful, and affirm both the award of prejudgment interest and the denial of liquidated damages. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I.

Plaintiffs are Electronic Technicians in Oklahoma Gas & Electric's ("OG&E") Facility Operations Department. Plaintiffs Pabst and Gilley were Electronic Technician I's ("Tech 1s") and plaintiff Barton was an Electronic Technician II ("Tech 2"). The three plaintiffs, along with two other employees, monitored automated heat, fire, and security systems in several OG&E buildings. Prior to an August 1994 reduction in force, these duties required twelve on-site employees working three eight-hour shifts.

Plaintiffs were on call to monitor OG&E building alarms weekdays from 4:30 p.m. to 7:30 a.m. and twenty-four hours a day on weekends. During these hours, alarms went to computers at Pabst and Gilley's homes, as well as to pagers for all plaintiffs. After October 1994, Barton began to receive alarms at home via lap-top computer. Plaintiffs were required to respond to the alarms initially within ten minutes, then, after October 1996, within fifteen minutes. Failure to respond within the time limit was grounds for discipline. Each plaintiff was assigned, and required always to carry, an alpha-numeric pager. These pagers were only 70% reliable. The short response time, coupled with unreliable pagers, forced plaintiffs to remain at or near their homes while on call.

The district court found that plaintiffs received an average of three to five alarms per night, not including pages for security issues. Although not all alarms required plaintiffs to report to the office--it appears many could be fixed by remote computer--the district court found it took an average of forty-five minutes to respond to each alarm. Neither party disputes those findings on appeal.

At trial, the parties did dispute whether a rotational on-call schedule was ever proposed or implemented. Acknowledging the dispute, the district court found that "[c]ontrary to OG&E's contention, an examination of the overtime hours actually billed by plaintiffs does not demonstrate that a rotational schedule was ever in effect; rather, the records reveal significant overlap among the technicians, which indicates to the court that no rotational schedule was ever implemented prior to June 1997." (I Appellant's App. at 57.) The district court also found a rotational schedule would not have been feasible because of the frequency of alarms and plaintiffs' differing areas of expertise.

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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 for responding to alarms. Because it found OG&E's violation was not willful, however, the district court limited recovery to the two-year limitations period. It also refused to award liquidated damages, finding that the FLSA violation was reasonable and in good faith. OG&E appeals the district court's rulings on liability, damages, and prejudgment interest, while plaintiffs cross-appeal the district court's ruling denying liquidated damages and its finding of no willful violation.

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Affirmed.

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