The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. These requirements involve a determination as to the number of hours an employee “works” each workweek. As explained below, the FLSA generally requires that compensable working time include any time that an employee is suffered or permitted to work. When an employee is “on-call,” a question often arises as to whether that time is considered compensable working time under the FLSA. FLSA regulations provide that, generally speaking, time that an employee is “engaged to wait” is considered compensable working time, whereas time an employee is “waiting to be engaged” is not compensable working time.
Working Time is Time the Employee is Suffered or Permitted to Work
The FLSA defines “employ” as “includes to suffer or permit to work.” 29 U.S.C. § 203(g). FLSA regulations provide further guidance as what constitutes “work time,” for which minimum wages and overtime compensation (for work time over 40 hours per workweek) must be paid:
Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.
29 C.F.R. § 785.11. This rule “is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” 29 C.F.R. § 785.12.
Whether Waiting Time is Work Depends on the Circumstances
FLSA regulations make clear that the determination as to whether on-call or waiting time is compensable depends on the factual circumstances. This inquiry generally turns on whether the employee was “engaged to wait” or “waited to be engaged”:
Whether waiting time is time worked under the [FLSA] depends upon particular circumstances. The determination involves “scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Facts may show that the employee was engaged to wait or they may show that he waited to be engaged.” (Skidmore v. Swift, 323 U.S. 134 (1944))[.] Such questions “must be determined in accordance with common sense and the general concept of work or employment.” (Central Mo. Tel. Co. v. Conwell, 170 F. 2d 641 (C.A. 8, 1948))[.]
Time Engaged to Wait: Generally Compensable Working Time
FLSA “on duty” regulations provide that generally, time that an employee is “engaged to wait” is compensable working time. Generally, an employee may be engaged to wait if he is “unable to use the time effectively for his own purposes” and “waiting is an integral part of the job”, among other factors to consider:
A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity. The rule also applies to employees who work away from the plant. For example, a repair man is working while he waits for his employer’s customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.
Therefore, periods when an employee is truly “engaged to wait” generally must be counted towards compensable hours worked for purposes of determining minimum wage and overtime compensation under the FLSA.
Time Waiting to Be Engaged: Generally Not Compensable Working Time
By contrast, FLSA “off duty” regulations provide that time an employee is “completely relieved from duty” is generally not compensable working time. Generally, these are periods which are “long enough to enable him to use the time effectively for his own purposes”:
(a) General. Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.
29 C.F.R. § 785.16(a). Therefore, whether an employee is completely relieved from duty and able to use the time effectively for his own purposes depends on the facts and circumstances. The regulation indicates that an employee is not completely relieved from duty “unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived.” Id. Further, “[w]hether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.” Id.
The FLSA regulation further provides a few helpful examples illustrating the difference between the concepts of “engaged to wait” (compensable time) and “waiting to be engaged” (non-compensable time):
(b) Truck drivers; specific examples. A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period. If the driver reaches his destination and while awaiting the return trip is required to take care of his employer’s property, he is also working while waiting. In both cases the employee is engaged to wait. Waiting is an integral part of the job. On the other hand, for example, if the truck driver is sent from Washington, DC to New York City, leaving at 6 a.m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p.m. when he again goes on duty for the return trip the idle time is not working time. He is waiting to be engaged.
Thus, if an employee is simply waiting to be engaged, that time is generally not considered compensable working time under the FLSA.
On-Call Time: Compensability Depends on Restrictions on Employee Freedom
Consistent with these concepts, FLSA regulations further explain that “on-call” time can be compensable if the employer’s on-call requirements prevent the employee from using the time effectively for his own purposes, such as when the employee is “is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes”:
An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.
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