Labor Cassation: when passive on-call duty becomes working time

1. The fact

   The case arises from appeals filed by specialized technicians against their employers, who were accused of abusing on-call arrangements. According to reports in Quotidiano del Lavoro, the appellants were required to remain available throughout night and holiday shifts, with the obligation to reach the intervention site within 15 minutes of the call. According to the employees, this constraint rendered any social or personal activity impossible.

   The procedural path saw conflicting outcomes in the lower courts, culminating in an appeal to the Labor Section of the Supreme Court of Cassation. In its most recent orders, the Court quashed the lower court decisions that had denied on-call duty the status of working time, establishing that trial judges must verify whether the restrictions imposed are incompatible with rest. This is not a final order for payment, but a remand requiring a fresh evaluation of the facts based on strict European legal standards.

2. 

   The rules at play

   The subject is governed primarily by Legislative Decree No. 66/2003, which implements European directives on the organization of working time. Article 1 defines working time as any period during which the worker is at the employer's disposal, while rest is defined residually as any period that is not working time. Directive 2003/88/EC provides the interpretative framework for national courts, establishing a binary approach that leaves no middle ground between work and rest.

   Under civil law, Articles 2107 and 2108 of the Civil Code govern maximum working hours and remuneration for overtime. The violation of these rules leads to the reclassification of the service: if on-call duty constitutes working time, the employer must pay full remuneration rather than a mere on-call allowance, in addition to settling unpaid social security contributions.

3. What the jurisprudence says

   The position of Italian case law has aligned with the principles set out by the Court of Justice of the European Union (CJEU). The core principle is the intensity of the constraint: on-call duty does not constitute working time if the employee can engage in personal activities while remaining reachable. However, if reaction times are so brief as to force the worker to remain within a narrow area or prevent them from leaving home, the status of actual work applies.

   The courts have clarified that there is no legally fixed minute threshold; rather, courts must evaluate the frequency of calls and the extent of spatial restrictions. If the worker suffers limitations that objectively and significantly impair their ability to manage their own time, the waiting period ceases to be rest. Case law emphasizes that the burden of proof often rests on the worker, who must demonstrate the actual restriction of their freedom during the shift.

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8. What it teaches professionals

   1. Corporate counsel should advise clients to review contractually stipulated intervention response times, recommending thresholds exceeding 30-45 minutes to prevent reclassification.
   2. It is essential to log the actual frequency of callouts during shifts to substantiate claims of passive on-call duty.
   3. When drafting pleadings, counsel should consistently cite CJEU jurisprudence, as the Supreme Court of Cassation applies EU law as a primary source of authority in this domain.

References: D.Lgs. n. 66/2003Direttiva 2003/88/CEArt. 2107 Codice CivileArt. 2108 Codice Civile

Editorial oversight: Avv. Federico Papa·ICAMUpdated 15 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction