work | \ wərk \ (noun): activity in which one exerts strength or faculties to do or perform something
In common parlance, the concept of “work” connotes some physical or mental exertion. The law, however, defines the term more broadly, and properly compensating employees often is not as simple as paying for all time spent performing “work” in the usual sense of that term. The Fair Labor Standard Act (“FLSA”) and the laws of many states require employers to also pay for certain periods of time during which employees are idle and simply waiting to begin working—even if those employees never become engaged in work.
Failure to recognize and count certain waiting time as compensable work hours is a costly mistake: it exposes the employer to potential claims and lawsuits seeking back wages, penalties, and other relief available under federal and state law.
What is waiting time, and when must an employer pay for it?
Waiting time is what it sounds like: a period of inactivity during which an employee waits or expects to perform work. Whether waiting time is compensable depends on the specific facts. Broadly speaking, an employee may be waiting to be engaged (which is not compensable) or engaged to wait (which is compensable). As to the latter category, the Supreme Court has recognized that an employer may hire an employee “to do nothing, or do nothing but to wait for something to happen.”[1]
The U.S. Department of Labor regulations differentiate between three types of waiting time: on-duty waiting time; off-duty waiting time; and on-call time.
On-Duty Waiting Time
Generally, the DOL takes the position that an employee who is on duty and waiting for a work assignment is “engaged to wait” and entitled to compensation, irrespective of whether the employee works on or off the employer’s premises. For example, an office receptionist who reads a book while waiting to greet clients or answer telephone calls, a restaurant server who chats with co-workers while waiting for patrons to arrive, and a truck driver who waits at the truck for goods to be loaded or unloaded—in each scenario, waiting is an essential part of the job. This renders the waiting time compensable under the FLSA.
The fact that an employee may leave the employer’s premises or the job site during periods of down-time does not necessarily relieve the employer of the obligation to pay for such time. The general rule of thumb is that if the period of inactivity is short and unpredictable, and if the employee is unable to use that time effectively for his or her own purposes, then the employee remains on-duty and is entitled to compensation because the employer still effectively controls the employee’s time.
Off-Duty Waiting Time
Off-duty waiting time, or layover time, is a period during which an employee is “waiting to be engaged.” Under DOL regulations, off-duty waiting time does not count as compensable work hours if four factors line up: (1) the employee is completely relieved of duty (2) for a long enough duration to effectively use the time for his or her own purposes, (3) the employee is told in advance that he or she can leave the premises or job site, and (4) the employee is told the specific time at which he or she must commence or resume work. Employers should note that whether the off-duty waiting time is long enough to allow the employee to freely engage in personal activities depends on all of the facts and circumstances of the case.
The DOL has provided the following illustrative example: an employer dispatches a truck driver from Washington, D.C. to New York City. The driver leaves at 6:00 a.m., arrives at 12:00 noon, and is completely relieved from all duty until 6:00 p.m. when he or she must set out on the road for the return trip. During the six-hour period from 12:00 noon to 6:00 p.m., the driver is off-duty, and that time does not constitute work hours.
On-Call Time
The third type of waiting time the federal regulations delineate is “on-call time,” which typically refers to any period during which an employee waits for his or her employer to call upon the employee to perform work. On-call situations vary. An emergency room nurse who must stay in the hospital but may eat, watch television, or read a book while waiting to treat patients; a handyman who carries a radio and must remain in uniform and within a two-block radius of the building or apartment complex while waiting for service calls; and a utility repair worker who must be reachable by phone and able to report to service utility emergencies within 30-45 minutes but otherwise is free to engage in personal activities—all of these employees are on-call, but not all of them necessarily are entitled to pay for their on-call time.
The compensability analysis for on-call time is like the analysis for on- and off-duty waiting time. Under DOL regulations, on-call time constitutes compensable work time if the employee must remain on the employer’s premises, or so close to the premises, that he or she is not able to use the time freely to pursue personal activities, like the nurse or handyman. By contrast, the on-call time of the utility worker who may simply provide a contact number but otherwise is free to run errands, cook dinner, go shopping, or visit friends is not compensable working time because the worker is able to use the time effectively for his or her own purposes. In other words, the worker, not the employer, controls that time.
What are the key factors to determine compensability of waiting or on-call time?
Determining whether waiting or on-call time should count as work hours requires a fact-intensive and circumstance-specific inquiry. The non-exhaustive list of factors to consider include:
- geographic restrictions placed on the employee;
- time within which the employee must respond to calls;
- amount of advance notice of the on-call period;
- use of a pager, cell phone, or radio to contact the employee, and how continuously the employee is expected to monitor the device;
- employee’s ability to engage in personal activities during the on-call time, including the degree of restrictions prohibiting any specific personal activities; and
- the frequency of calls during the on-call period.
Employers should note that some states, like California, have laws that require certain payments for on-call duty that differ from the FLSA. Thus, even if an employer provides ample advance notice of on-call assignments, imposes minimal restrictions on personal activities, issues phones or pagers to enable employees to travel freely while on-call, and sets a reasonable response time, and even if the employee rarely is called to duty, the employer may still be on the hook to pay for that on-call time as work hours under state law. Employers should consult with counsel to ensure their on-call policies and practices are compliant with the FLSA and the laws in all states in which they operate.
[1] Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944)
