Garrett J. Dinges and Christine Foster v. Sacred Heart St. Mary's Hospitals, Inc.

EASTERBROOK, Circuit Judge.

Working more than 40 hours per week draws premium pay under the Fair Labor Standards Act, 29 U.S.C. § 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, 65 S.Ct. 165, 89 L.Ed. 118 (1944), with Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). That evocative distinction rarely decides a concrete case; on-call time readily can be characterized either way. For most purposes…