Labor & Employment Law Daily Wrap Up, WAGE-HOUR—WORKING TIME—D.N.H.: Time spent by employee waiting to respond to emergencies, not compensable on-call time, (Sep 10, 2026)

By Ronald Miller, J.D.

No reasonable jury could find that the employee’s on-call time was compensable under the FLSA.

An employee was not entitled to payment for time spent “on-call” waiting to respond to emergencies, ruled a federal district court in New Hampshire. In terms of on-call restrictions, the employee was not required to closely monitor ongoing radio transmissions, live in a moving vehicle, or report within 20 minutes of a call. Rather, the employee had some freedom in determining how to use his on-call time, despite limitations. He could engage in activities in a relatively large geographic area, calls were only frequent during certain seasons, and he was able to engage in activities like walking the dog, yard work, and visiting family. Because the employee could and did engage in a range of personal activities while on call, the court granted the employer’s motion for summary judgment finding that the employee’s on-call time was not compensable under the FLSA (Coburn v. City of Manchester, NH, No. 25-cv-71-JL-TSM (D.N.H. Sept. 8, 2026)).

“On call” status. From 1988 until he retired on August 1, 2024, the employee worked for the City of Manchester. At the time of his retirement, he had been a utility inspector with the city’s Highway Division for 15 or 16 years, with an “on call” status requirement. The employee was subject to receiving and responding to calls in the event of utility-related emergencies occurring outside the typical Monday through Friday workday.

The employee shared on-call duties with one colleague. Because one of them was required to be on call at any given time, the employee spent 26 weeks per year on call, including weekends. Each call required the employee to leave his home for hours and sometimes the work would extend to several days on end. While on call, the employee stayed close to where he lived or where he worked. He nevertheless engaged in activities around his home, like walking the dog and yard work, and attended family gatherings while on call.

On-call hours. The employee received all wages for his typical working hours, i.e., his 40-hour work weeks, and overtime for hours over 40 when he responded to emergencies. The only wages at issue in this case were those for on-call hours.

Union contract. Although the employee was not a union member, his position fell under a collective bargaining agreement between the city and a municipal employee union. The operative CBA provided that the city pay covered employees’ overtime if they worked more than eight hours per day or 40 hours per week, a minimum of three hours pay if an employee left work and was recalled to work, and $40 per day for each 24-hour period when employees holding certain positions were on “standby.” The agreement in place during the employee’s tenure did not provide for “standby” pay for utility inspectors.

Back pay claim. The employee raised the issue of on-call pay with his supervisors, but the city did not change its policy to compensate him for the time he spent on call.

The employee brought suit against the city in 2025, claiming back-pay for the time he spent on call, under the FLSA and state law.

“Predominant benefit test”. In on-call or waiting cases, “the critical question is whether an employee is ‘engaged to wait’ (which is generally compensable) or ‘wait[ing] to be engaged’ (which is noncompensable).” To determine whether an employee’s time is spent in “engaging to wait” and therefore compensable under the FLSA, the First Circuit applies the “predominant benefit test.” Under this test “employee time is compensable work when [the] ‘time is spent predominantly for the employer’s benefit,’ which ‘is a question dependent upon all the circumstances of the case.’” Some restriction of the employee’s activities during on-call time does not render the time compensable under the FLSA. To survive a motion for summary judgement, “the employees must show that the on-call policy imposes [] burdens that seriously interfere with their ability to use the time for personal pursuits.”

The main disputes between the parties centered on the compensability of the employee’s on-call time under FLSA 29 U.S.C. §207(A)(1), and whether there was a constructive agreement between the parties regarding on-call pay.

Here, the court granted summary judgment to the city, concluding that no reasonable jury could find that the employee’s on-call time was used predominantly for the city’s benefit and was therefore compensable under the FLSA.

The city argued that the employee’s time on call was not compensable because he did not spend it primarily for his employer’s benefit. The “predominant benefit test” includes the employee’s physical location and ability to leave the workplace, and the ability to engage in personal activities during the time.

In this instance, the employee was not subject to burdensome geographical restrictions, an unduly restrictive response time limit, or an on-premises living requirement. He was able to go anywhere with cell phone coverage so long as he could respond in a “reasonable” time. Moreover, the city never gave the employee a limit on his response time or reprimanded him for taking too long to respond to a call.

For his part, the employee argued that he was unable to engage in the types of pursuits he loves—hiking, sailing, bicycling—because he had to remain within range of cell phone service and able to get to Manchester within a “reasonable” amount of time. However, the employee pointed to no evidence of an on-call restriction so onerous that he could not engage in normal activities while at home.

Subjective feelings. The court did not find the employee’s subjective feeling that he was not able to go to sit-down restaurants or movies reasonable. Although the policy may have circumscribed his activities, “the fact that some of the plaintiff[’s] activities have been affected by the policy is not sufficient to make the on-call time compensable.”

Moreover, although the employee’s on-call schedule may not have been “flexible” because he was required to be on call every other week, he was able to switch on-call shifts, subject to the agreement of his colleague.

Additionally, despite the fact that when the employee was called away, the work could last for a few hours, or might extend into multiple days, he cited no legal precedent holding that the duration of actual work time renders the non-working on-call time itself compensable.

The case is No. 25-cv-71-JL-TSM.

Judge: Laplante, J.

Attorneys: H. Jonathan Meyer (Backus Meyer & Branch) for Gene Coburn. Meredith M. Lasna (Pastori Krans) for City of Manchester, NH.

Companies: City of Manchester, NH

Cases: WageHour WorkingTime Overtime NewHampshireNews