As indicated in our prior post, we are publishing a series of articles discussing various aspects of when employers should count time spent by an employee as hours worked for purposes of minimum wage and overtime calculations under the Fair Labor Standards Act (FLSA). Previously, we have covered the topic of travel time. Today, we will discuss waiting time.
“Waiting time” for purposes of FLSA minimum wage and overtime calculations* is time spent by a employees lawfully not performing the work for which they were hired but still subject to the direction of their employer or constraints of their job. 29 CFR 785.14-16. This time is typically broken down into three categories:
- on-duty waiting time;
- off-duty waiting time; and
- on-call time.
We will address on-duty and off-duty waiting time now and on-call waiting time in the next installment of our FLSA – Hours Worked series.
On-Duty Waiting Time
On-duty waiting time should be counted as hours worked. It is time spent by an employee, typically during normal work hours, waiting for direction from their team lead, supervisor, or manager. These on-duty waiting time periods usually last only for a short time and can be unpredictable as to when they occur and how long they will last. The employee is generally not allowed to leave the workplace during a period of on-duty waiting time. Essentially, because the employer benefits from having the employee available for immediate engagement in work and the employee is not otherwise able to use the time effectively for their own personal purposes, on-duty waiting time must be counted as hours worked.
Examples of on-duty waiting time that should be counted as hours worked include a messenger waiting for his or her next assignment, a warehouse worker waiting for a truck to arrive, factory workers waiting for machinery to be fixed, and a firemen waiting for an emergency call. Each of these examples represents a situation where the hallmarks of on-duty waiting time are present: the employee
- is not engaged in the work for which they were hired;
- remains subject to the direction of his or her employer;
- is not able to effectively use the time for themselves; and
- is unsure as to when the waiting period will occur and/or how long it will last.
Employees who work away from their employer’s place of business can also be on-duty while waiting for work. Repairmen for utility companies represent a good example of when workers may experience on-duty waiting time while away from the employer’s workplace. If a repairman must wait for a home or business owner to allow them into their premises or wait for a new service call to come in, that time should be counted as hours worked for purposes of minimum wage and overtime calculations.
Off-Duty Waiting Time
Off-duty waiting time does not need to counted as hours worked. These off-duty periods occur when an employee is completely relieve from his or her job duties, can leave his or her workplace, and can effectively use the time for his or her own personal purposes. Off-duty waiting time periods are usually longer in duration that on-duty waiting periods. To be off-duty, the employee must be told that they are free to do as they please, including leaving the work place, and the time when the employee is required return to work must be specifically defined.
For example, an employee who travels across town for a sales meeting that ends at 10:00 a.m. and remains across town for a sales meeting that starts at 2:00 p.m. would be off duty for the time in between the two meetings if they were not required to perform any job duties and were free to do as they please during that time. Again, critical to the determination of whether waiting time is off-duty and, thus, does not need to be counted as hours worked, is whether the employee:
- is completely relieved of his or her job duties and is told such by the employer;
- can leave his or her workplace;
- is free to use the time for personal purposes;
- has sufficient time to take advantage of being relieved of all work duties; and
- is aware of the specific time he or she must return to work.
Waiting time is a component of most jobs in some form or another. Learning the differences between on-duty waiting time and off-duty waiting time is important to ensure employees are properly compensated and to reduce exposure to a wage and hour, minimum wage, or overtime law suits. If you are faced with a situation where it is difficult to determine whether waiting time is on-duty or off-duty, contact a lawyer or Human Resources expert to ensure you are in compliance with the law.
Below are links to other topics covered in our FLSA – Hours Worked series:
- Travel time
- Waiting time
- On-Call time
- Rest and meal periods
- Sleeping time
- Meeting and training time
- Show-up time
- Time suffered or permitted to work
- Unauthorized time (coming soon)
* States may have their own minimum wage and overtime laws, including their own standards for when an employee must be paid for waiting time. Employers are required to apply the federal or state minimum and overtime law that provides employees the greatest benefits. For more information on state minimum wage and overtime laws, visit our pages on minimum wage and overtime.