FLSA Waiting Time – The Difference Between Waiting To Be Engaged Vs. Being Engaged To Wait

As part of our Fair Labor Standards Act (FLSA) and minimum wage and overtime Hours Worked series, we will now discuss the concept of waiting time. As discussed in our FLSA Hours Worked introductory article, every employer needs to be aware of what hours during an employees day must be included in their wages to avoid employees filing wage claims, now commonly referred to as wage theft. Although most of the time it is easy to determined if an employee is on-the-clock or off-the-clock, there are times when it is not that simple. FLSA waiting time is one of those more complicated situations.

What is FLSA waiting time?

Waiting time for purposes of FLSA minimum wage and overtime calculations must be counted as hours worked when an employee is 1) lawfully not performing the work for which they were hired but 2) still subject to the direction of their employer or constraints of their job. 29 CFR 785.14-16. In these situations, the continuous workday doctrine the U.S. Department of Labor relies on to determine if work hours should be counted for minimum wage and overtime would apply.

The difference between when waiting time must be included as hours worked and when it may be excluded is often describe as the difference between an employee waiting to be engaged vs. being engaged to wait. This difference depends on the circumstances. Generally what the difference boils down to is how much control the employee has to use their time for their own purposes as opposed to being restricted so they are available to work with little or no notice. When an employer must include an employee’s waiting time as regular work hours it is because the waiting is an integral part of the job and the employee’s workday.

Whether waiting time must be included in an employee’s hours worked is typically broken down into three categories:

• on-duty waiting time;
• off-duty waiting time; and
• on-call time.

We address on-duty waiting time and off-duty waiting time in this article and on-call waiting time in our article Fair Labor Standards Act – When on-call time is recognized as hours worked.

What is On-Duty Waiting Time?

On-duty waiting time must be counted by employers as hours worked. This is because on-duty waiting time is time spent by an employee, typically during normal work hours, waiting for direction from their team lead, supervisor, or manager. Such periods of inactivity usually last for only a short period of time and can be unpredictable as to when they occur and how long they will last. These short and unpredictable on-duty waiting time periods are considered to be part of the employees continuous workday.

Most importantly, the employee is generally not allowed to leave the employer’s premises, except for a short duration, during a period of on-duty waiting time. Because the employer benefits from having the employee available for immediate engagement in work and the employee is not 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 or truck driver waiting for a truck to arrive, factory workers waiting for machinery to be fixed, and firemen waiting for emergency alarms calls. 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.

What is Off-Duty Waiting Time?

Off-duty waiting time does not need to be counted as hours worked. These off-duty periods occur when employees are completely relieved from his or her job duties such as at the end of the workday. With off-duty waiting time, an employee can leave the employee’s job and can effectively use the time for his or her own personal purposes. Off-duty waiting time periods are usually longer in duration than on-duty waiting time periods. To be off-duty, the employee must be told that they are free to do as they please, including leaving the job site, and the time when the employee is required to 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 1) they were not required to perform any job duties and 2) 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.

What about exempt employees and waiting time?

Employers only need to concern themselves with tracking waiting time for non-exempt employees. This is mainly because employers must ensure that they are 1) paying employees for all hours worked and 2) are properly paid for overtime which is available after a non-exempt employee works more than 40 hours in a workweek.

Bona fide exempt employees, contrary to non-exempt employees, are not entitled to overtime. Thus, the number of hours they work in the workweek does not need to be tracked by their employer including any time they spend waiting to do work.

What about remote employees and waiting time?

The same rules regarding waiting time apply to remote employees or employees that work from home as those employees who work at an employers workplace. Employers who have employees who work from home are encouraged to ensure they policies are well defined and employees understand them so that the employees properly record their on-duty waiting time.

Do states have the same waiting time rules as the FLSA?

Many states have the same waiting time rules as the Fair Labor Standards Act. However, they are other that have established more restrictive rules. Below are links to individual states and their waiting time rules:

Conclusion

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: