On-Call Cases Continue To Prove Difficult To Establish

A group of West Yellowstone, Montana police officers sued the City under the Fair Labor Standards Act (FLSA), claiming that the time they spent on call should be compensated at the overtime rate. West Yellowstone is a small community that serves as the western entrance to Yellowstone National Park. West Yellowstone receives thousands, if not millions, of visitors during the summer months due to its proximity to Yellowstone. During the off season, however, services and amenities are limited, expensive, or altogether unavailable. Despite its relative remoteness, the town is attractive for its proximity to a variety of outdoor activities.

The Town generally employs four police officers. One police officer is on duty at all times, with one officer working the day shift and another working the night shift. Work periods lasted for two weeks, and officers worked three 12-hour shifts one week and four 12-hour shifts the next, totaling 84 hours of work per 14-day period. Until the collective bargaining agreement changed in March 2009, each officer was also required to be on call for the 12 hours immediately preceding his shift. If an officer worked the Monday, Tuesday, and Wednesday day shifts, he would be on call Sunday, Monday, and Tuesday nights from 6 p.m. until the start of his shift at 6 a.m. the next morning.

This on-call requirement stemmed from the Town’s policies requiring an additional police officer to provide backup for certain more dangerous situations like crimes in progress, most disorderly conduct calls, and partner or family member assault. Other requests for backup were made according to the responding officer’s discretion. Because the on-call requirement was intended to provide backup for potentially dangerous situations, the on-call officer was provided a cell phone and expected to be reachable at all times. This responsiveness required the plaintiffs to stay within cell service areas and keep their phone ringers loud enough to wake them if a call came while they were sleeping. The officers were also expected to respond immediately, be in some sort of clothing that identified them as police officers, to have their police gear, and to respond in a patrol car. If an officer was actually called out while on call, they would receive a minimum of 2.5 hours of overtime pay. The officers were not otherwise compensated for their on-call time.

The Montana Supreme Court upheld a jury’s verdict that the FLSA did not require that the officers be compensated for the on-call time. The Court found that substantial evidence demonstrated that the officers spent much of their on-call time asleep, eating meals, doing various household chores, or watching movies. The Court also found substantial evidence for the proposition that the officers received few call-outs and were not disciplined in the instances where they missed a call.

The Court cited the fact that “there is no evidence that any police officer has ever been disciplined for failing to immediately respond to a call. The officer testified that trading shifts was at least possible. In fact, the officers were rarely called out. If there was evidence that a reasonable mind might accept as adequate to support the jury’s conclusion, our review ends. The jury was free to consider, and reject, the persuasiveness of the officers’ testimony. Because there was sufficient evidence to support the jury’s verdict, we affirm the verdict in favor of the Town.”

Stubblefield v. Town of West Yellowstone, 2013 WL 1212861 (Mont. 2013).