1. What test does the Secretary of Labor’s regulations apply in determining whether on-call status is compensable work time?
2. Explain what the court means when it refers to “that weasel word ‘effectively.’”
3. Does the court speculate on a possible management response should the on-call period be deemed “work” under the FLSA?

[Sacred Heart St. Mary's Hospitals operate a hospital in rural Tomahawk, Wisconsin. The hospital's ambulance department has two emergency medical technicians (EMTs) in-house during the day, but after hours the hospital relies on standby crews. Two EMTs serve as the "first-out" crew and two more as the "secondout" crew. An EMT on first-out status must arrive at the hospital within seven minutes of receiving a page. Members of the first-out crew receive $2.25 per hour of on-call time, plus pay at time-and-a-half for all hours devoted to handling a medical emergency. The hospital credits them with at least two hours' work for each emergency call even if they are back home in less time, as they usually are. Garret Dinges and Christine Foster asked for and were assigned firstout status. Now, in this suit, they contend that the rewards should have been even greater than those the hospital promised and delivered-that the entire 14 to 16-hour on-call period should be treated as working time, so it would produce 21 to 24 hours' wages even if they did not receive an emergency call. Both Dinges and Foster live within seven minutes' drive from the hospital; indeed, the entire city of Tomahawk is within the seven-minute radius, so they can and do pass the on-call time at home or at other activities in or near the city. Mr. Dinges and Ms. Foster cannot travel outside Tomahawk. Each has spent holidays at home rather than with relatives and has been unable to attend weddings, family reunions, parties, and other events. While on call, Dinges cannot assist in operation of the family business, located 20 miles from the hospital. Hunting, fishing, boating, camping, and other recreational activities are restricted to what is possible near the hospital.

The hospital responds by emphasizing what EMTs can do during on-call hours: cook; eat; sleep; read; exercise; watch TV and movies; do housework; and care for pets, family, and loved ones at home. Many things in the vicinity of home also are compatible with first-out status. For example, Foster watches her children participate in sports, attends dance recitals, and goes to restaurants and parties. From a judgment for the hospital, the plaintiffs appealed.]
EASTERBROOK, C. J….
Working more than 40 hours per week draws premium pay under the Fair Labor Standards Act, 29 U.S.C. sec. 207. Should hours spent "on call" be treated as work? According to the Supreme Court, the answer depends on whether one has been
"engaged to wait" or is "waiting to be engaged." Compare Armour & Co. v. Wantock, 323 U.S. 126 (1944), with Skidmore v. Swift & Co., 323 U.S. 134 (1944). That evocative distinction rarely decides a concrete case; on-call time readily can be characterized either way. For most purposes it is best to ask what the employee can do during on-call periods. Can the time be devoted to the ordinary activities of private life? If so, it is not "work." Even a functional approach produces close calls, however;
this is one.
An employee who is not required to remain on the employer's premises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, a firefighter has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee's activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.

29 C.F.R. sec. 553.221 (d). See Auer v. Robbins, 117 S. Ct. 905 (1997) (courts should defer to the Secretary's definitions of terms). The regulatory question is whether the employee can "use the time effectively for personal pursuits"-not for all personal pursuits, but for many. But then there is that weasel word "effectively." An employee who can remain at home while on call, but is called away every few hours, can't use the time "effectively" for sleeping, and probably not for many other activities. Plaintiffs, however, experience less than a 50% chance that there will be any call in a 14- to 16-hour period, so their time may be used effectively for sleeping, eating, and many other activities at home and around Tomahawk. (Over 338 on-call periods, Dinges had 184 pass without a call. Thus Dinges responded to at least one call only 46% of the time. Foster's experience was similar.)….
… Although the FLSA overrides contracts, in close cases it makes sense to let private arrangements endure-for the less flexible statutory approach has the potential to make everyone worse off. Suppose we were to hold that time the EMTs spend on call counts as "work." That would produce a windfall for Dinges and Foster today, but it would lead the Hospital to modify its practices tomorrow. If the EMTs are "working" 24 hours a day, then the Hospital will abolish the on-call system and have EMTs on its premises 24 hours a day, likely hiring additional EMTs so that it can limit the premium pay for overtime. This is what St. Mary's already has done at its hospital in Rhinelander, Wisconsin. The Hospital will pay more in the process, but EMTs such as Dinges and Foster will receive less, spend more time at the Hospital (and less at home), or both. Ambulatory statutory and regulatory language permits labor and management to structure their regulations so that each side gains. That is what the Hospital has done in Tomahawk, and we do not think the FLSA compels a different arrangement.
Affirmed.