I Do! Waiting to be Engaged or Being Engaged to wait under the FLSA
Yea, I know, it’s not that kind of engaged, but you have to admit that was a little funny. No? OK, let’s move away from the general concept of suffering and permitting to work and talk about some specific issues in determining what amounts to working time. A lot of employers have employees who spend significant periods of time during the work day doing nothing productive. Many employers have employees who are on call or who wear a pager (see, I really am that old) or carry a cell phone as part of their duties after their normal work hours. So the question is, when is an employee on duty – that is, working and entitled to compensation – and when are they not? This is one of the areas that the regulations do a pretty good job of putting some boundaries around. What is referred to as “waiting to be engaged” and “being engaged to wait”?
The general rule is this:
Whether waiting time is time worked under the Act 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).)
29 CFR § 785.14.
Early in the history of the FLSA, some employers tried to avoid paying employees who were not doing any productive work during the workday. Let’s get that one out of the way right now, the regulations make it clear that time during the work day that an employee spends sitting around waiting for something to do is compensable even if the employee is doing something for his or her own enjoyment or benefit.
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 work time 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. (See: Skidmore v. Swift, 323 U.S. 134, 137 (1944); Wright v. Carrigg, 275 F. 2d 448, 14 W.H. Cases (C.A. 4, 1960); Mitchell v. Wigger, 39 Labor Cases, para. 66,278, 14 W.H. Cases 534 (D.N.M. 1960); Mitchell v. Nicholson, 179 F. Supp, 292,14 W.H. Cases 487 (W.D.N.C. 1959).)
29 CFR § 785.15.
And that seems pretty clear and pretty straightforward. The courts have been pretty clear on this too and have found that things like standing around waiting for a machine to be fixed, or a waitress sitting in a restaurant waiting for customers to come in, or a truck driver waiting for his truck to be loaded at his destination so he can return to his home base is all compensable time. And that is all time that we would normally call “idle time” during the employee’s normal workday. And that, by the way, is going to make me take a small step back and let’s define the “workday.” The FLSA does not have a definition of “workday,” but the Portal-to-Portal Act does.
(b) “Workday” as used in the Portal-to-Portal Act means, in general, the period between the commencement and completion on the same workday of an employee’s principal activity or activities. It includes all time within that period whether or not the employee engages in work throughout all of that period.
29 CFR § 790.6.
Generally, any idle time that occurs within the workday is compensable time and must be counted as hours worked, but not all the time. For example, the regulations do allow for what we would now call a “split shift.” You know what I mean, an employee comes to work, works several hours, is relieved from duty for a couple of hours and then comes back and finishes out the day. Happens in restaurants all the time where there are, say, lunch and dinner rushes that require higher levels of staffing than during the rest of the day. So given the definition of workday and the rule on idle time during the workday, how do employers get away with this?
(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 CFR § 785.16(a).
So, when an employee is sitting around during the work day waiting for work to do and is not free to leave and do what they want, the employee is “engaged to wait” and must be paid for that time. On the other hand, if the employee is free to leave and do what they want after starting the workday but before coming back to finish it off, like with a split shift, the employee is “waiting to be engaged” and does not have to be paid. The regs give a couple of specific examples involving truck drivers:
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. (Skidmore v. Swift, 323 U.S. 134, 137 (1944); Walling v. Dunbar Transfer & Storage, 3 W.H. Cases 284; 7 Labor Cases para. 61,565 (W.D. Tenn. 1943); Gifford v. Chapman, 6 W.H. Cases 806; 12 Labor Cases para. 63,661 (W.D. Okla., 1947); Thompson v. Daugherty, 40 Supp. 279 (D. Md. 1941).)
29 CFR § 785.16(b).
What about an employee who is now done with his or her regular workday but is now required to be “on call”?
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. (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))
29 CFR § 785.17.
Seems simple enough, right? Well not so fast. You see, generally the test that is applied to determine if on call time is compensable is fact specific and involves an analysis of whether the employee can use the time effectively for his or her own purposes. Some of the things that courts will look at in determining if an employee can use the on call time for his or her own purposes are if the employee is required to be on the employer’s premises during the on call time, if there are excessive geographical restrictions to what the employee can do, and if the frequency of calls makes it difficult for the employee to use the time for his or her own purposes. Not all restrictions on an employee’s activities make the time compensable. For example, it is generally the rule that prohibiting an employee from drinking alcohol while on call alone does not make the on call time hours worked.
Here is what we do know – whether the on call time is compensable is a highly fact specific inquiry, so if you are going to make people take on call shifts and you don’t want to pay them, check with your labor lawyer first.