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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Gabriel Scales,

Plaintiff,

v. 

Information Strategy Design Incorporated, 

et al.,

Defendants.

No. CV-18-00087-PHX-DLR

ORDER 

The Fair Labor Standards Act (“FLSA”) requires employers to compensate 

qualifying employees for time worked while on call. 29 U.S.C. § 207(a). On-call time, 

however, is not compensable during periods in “which an employee is completely relieved 

from duty and which are long enough to enable him to use the time effectively for his own 

purposes[.]” 29 C.F.R. § 785.16(a). Stated differently, time an employee spends “waiting 

to be engaged” is not compensable, but time spent “engaged to wait” is. Owens v. Local 

No. 169, Ass'n of W. Pulp & Paper Workers, 971 F.2d 347, 350 (9th Cir. 1992); see also

29 C.F.R. §§ 785.14-17. 

Plaintiff Gabriel Scales accuses Defendants Information Strategy Design 

Incorporated (“ISD”), Steven Losefksy, and Michele Losefksy of violating the “FLSA by 

not properly compensating him for overtime work. Scales was a salaried employee

offering technical support to Defendants’ clients. He worked on-call every six weeks. Oncall hours were Monday through Friday from 6:00 AM to 7:00 AM and 5:00 PM to 10:00 
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PM, and Saturday, Sunday, and holidays from 9:00 AM to 5:00 PM. When working oncall, Scales was expected to process voicemails and emails. After resigning in late 2017, 

Scales filed this action seeking overtime compensation.

Defendants move for partial summary judgment on whether the time Scales spent 

on-call but waiting, rather than working, is compensable under the FLSA. (Docs. 51.) 

Summary judgment is appropriate when there are no genuine disputes of material fact and, 

viewing those facts in a light most favorable to the nonmoving party, the movant is entitled 

to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect 

the outcome of the case, and a dispute is genuine if a reasonable jury could find for the 

nonmoving party based on the competing evidence. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986); Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 

2002).

Whether on-call time is compensable depends on the totality of the circumstances, 

but predominately the employee’s ability to engage in personal activities and any 

agreements between the parties. 29 C.F.R. § 785.16(a); Owens, 971 F.2d at 350. Whether 

an employee could engage in personal activities depends on various factors, including (but 

not limited to):

(1) whether there was an on-premises living requirement; 

(2) whether there were excessive geographical restrictions 

on employee's movements; (3) whether the frequency of 

calls was unduly restrictive; (4) whether a fixed time limit 

for response was unduly restrictive; (5) whether the on-call 

employee could easily trade on-call responsibilities (6)

whether use of a pager could ease restrictions; and (7)

whether the employee had actually engaged in personal 

activities during call-in time.

Owens, 971 F.2d at 351. Whether the employee received a “respite from on-call duty” can

also be relevant. Id. at 354 (finding employees “received respite” from on-call duties under 

the policy’s escalation tree).

This analysis presents mixed questions of law and fact. “Whether and to what extent 

employees are able to use on-call time for personal activities is a question of fact,” as is 

“[w]hether there was an agreement between the employer and the employees that 
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employees would receive compensation only for actual work conducted on-call[.]” Berry 

v. Cty. of Sonoma, 30 F.3d 1174, 1180 (9th Cir. 1994). But, consistent with the summary 

judgment standard, if these matters are not genuinely disputed, “whether the limitations on 

the employees’ personal activities while on-call are such that on-call waiting time would 

be considered compensable overtime under the FLSA is a question of law.” Id.; see also 

Ballaris v. Wacker Siltronic Corp., 370 F.3d 901, 910 (9th Cir. 2004) (“The nature of the 

employees’ duties is a question of fact, and the application of the FLSA to those duties is 

a question of law.”).

Having carefully reviewed the evidence and considered the parties’ arguments, the 

Court concludes that summary judgment is inappropriate because of genuine factual 

disputes over the extent to which Scales could use on-call time for personal activities, and 

whether Scales had constructively agreed to be paid only for actual work conducted on 

call.

For example, in terms of geographic restrictions, Defendants expected only that 

Scales would remain “in town” when on-call. But because Scales required Internet access 

to check emails, he argues that he effectively was tied to his home. The parties also seem 

to disagree on the expected response time for voicemails. Scales claims he was required 

to call clients back immediately after checking voicemails, confirming receipt of the issue.

Defendants counter that Scales was expected to respond within one hour. Moreover, the 

evidence submitted by the parties leaves ambiguous the number of voicemails Scales

received.

Defendants note that Scales could trade shifts, but Scales claims that the small pool 

of employees in the on-call rotation made trades too difficult. Defendants also claim that 

Scales had more flexibility in using his personal time because he would not have been 

disciplined for failing to respond to voicemails or emails. Instead, unanswered issues 

would advance through an escalation tree. This might be true to an extent; an occasional

missed voicemail or email might not present a problem. But it defies common sense to 

believe that an on-call employee charged with responding to critical voicemails and emails 
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could nonetheless ignore these duties with impunity and, instead, allow the slack to be 

picked up by others further up the escalation tree. A jury reasonably could conclude that 

the escalation tree did not offer Scales as significant of a respite as Defendants contend.

As for the parties’ agreements, although Scales was hired as a salaried employee, 

there is no evidence that his employment contract discussed on-call pay. Defendants posit 

that Scales constructively agreed not to be paid for time spent waiting while on-call because 

he worked for at least two years under the policy and knew he was not being paid in the 

manner he now claims he was entitled to be. But there is some evidence that Scales 

complained about on-call compensation. Whether Scales constructively agreed not to be 

paid for time spent waiting while on-call is a fact question.

Because there are genuine disputes over whether and to what extent Scales could 

use on-call time for personal activities and whether he had constructively agreed to be paid 

only for actual work conducted on-call, it is inappropriate for the Court to decide as a matter 

of law whether Scales was “waiting to be engaged” or “engaged to wait.” Although 

compensability ultimately is a legal question, it does not follow that the Court is free to 

resolve factual disputes and choose between competing reasonably inferences along the 

way. Accordingly,

IT IS ORDERED that Defendants’ motion for partial summary judgment (Doc. 51) 

is DENIED.

IT IS FURTHER ORDERED that the parties shall participate in a telephonic trial 

scheduling conference before Judge Douglas L. Rayes on April 10, 2020 at 9:00 a.m. 

Parties participating shall do so via landline only. The use of cell phones will not be 

permitted. The parties will be provided with the call-in information via separate email. 

Dated this 27th day of March, 2020.

Douglas L. Rayes

United States District Judge