The federal Fair Labor Standards Act and state wage and hour laws require employers to generally pay employees for all hours worked. However, whether to pay employees for time spent waiting or time spent “on call” can be a complicated issue. Is that time working time for which the employee needs to be paid? The answer depends on the facts of each situation, but certain points can serve as guidance for employers.
Waiting Time: The maxim regarding waiting time states that if an employee is “engaged to wait” the employee is working, but if he or she “waiting to be engaged,” the waiting time is probably not working time.
For example, a receptionist in a doctor’s office who reads a magazine while waiting for patients to arrive, or warehouse workers discussing Sunday’s game while waiting for the next truck to arrive for unloading, are most likely “engaged to wait.” This is almost always the case when the employee needs to be at the worksite waiting for his or her next assignment or waiting for something to occur outside their control (such as for patients or the next truck to arrive) that triggers their usual job duties to be done. Employers who do not wish to pay employees for “down time” would be wise to assign these employees tasks that can be done while waiting.
On-Call Time: Employees are often scheduled to be “on call” during off-hours such as weekends and evenings when the main business is closed, but when clients, customers, or patients might have an urgent need for services. Certain employees will be assigned to carry the company cell phone, or have calls forwarded to their personal line to respond to those off-hours needs. Whether this “on call” time is compensable working time depends on how much freedom the employee has during this time period to enjoy activities of his or her choosing.
If the employee is required to be at the employer’s worksite while waiting to be called, that waiting/on-call time is usually working time for which the employee needs to be paid. If, however, the employee can be at home, or another location of his or her choosing, it is possible that, similarly to “waiting to be engaged,” these employees need not be paid until they receive a call. Of course, time spent responding to the call and assisting the client, customer or patient is working time for which the employee needs to be paid.
The more conditions an employer puts on the employee’s activities during the time he or she is waiting to be called, the more likely the waiting time is working time. Merely carrying the company call phone may not alone be sufficient, but if the employee must always be available to answer a call (unless on the line with another customer), or must return calls in a limited time frame, the employee’s freedom to engage in personal activities is restricted. Similarly, if the employee is prohibited from drinking alcohol or from leaving a geographic area when physical response to a customer call is required, it is more likely that the waiting/on-call time would be found to be working time.
Another factor considered is the amount of off-hours traffic that the on-call employee would need to address. For example, if it is expected that there could be 0-2 calls in an eight-hour overnight shift, and the calls need to be returned in thirty minutes to an hour, taking ten to fifteen minutes per call, the employee can probably utilize the overnight time effectively to sleep, or read, or otherwise engage in personal activities such that the time is generally their own. If, however, the company expects 4-5 calls per hour, each hour, all night, that employee is hardly on call and is more likely working.
Whether on-call or waiting time is hours worked for the purposes of the wage and hour laws is determined by many factors. It would be prudent to consult with employment counsel for guidance regarding your employees and how they need to be paid.