Paying employees for doing nothing

Waiting time

Whether waiting time is working time depends on the circumstances. If the employee cannot realistically do anything but wait for the employer, this is working time. If the employee can do whatever he or she chooses, this is not work time.

For example, firemen who play checkers while waiting for an alarm are working. They may not be performing job duties, but they cannot leave the premises. Their time belongs to the employer and cannot be used for their own purposes. Similarly, a repair man is working while he waits for a customer. He is “working” even if he can leave the premises or the job site for short periods of time. When the periods of inactivity are unpredictable and brief, the employee cannot use the time effectively for his own purposes. It belongs to and is controlled by the employer.

However, if an employee is completely relieved from duty and the time is long enough to use effectively for his or her own purposes, the employee is not working. Generally, the employee must be told in advance that he or she may leave the job and will not have to resume working until a specified time. Whether the time is long enough to use effectively for personal purposes depends on the facts and circumstances. Usually, the employee would need at least an hour (and more likely several hours) in order to use the time effectively for personal reasons.

Off duty, on-call

Employees may be off duty, but on-call, without being paid. The issue comes down to the degree of control imposed by the employer. For example, if an employee is asked to refrain from drinking alcohol and remain within a one-hour drive of the worksite, he or she is not under substantial control. The on-call time is probably not working time.

The more limitations imposed by the employer, the more likely that the on-call time will be working time. For instance, if an on-call employee must report to the business location within 10 minutes of a call, the employee may not be able to use the time effectively for personal activities. If so, the on-call hours may count as working time.

On the other hand, if an on-call employee is able to resolve any problems over the phone, the employee is probably not working while on-call. Answering an occasional phone call should not unduly disrupt any personal activities, so only the time spent conducting business (i.e., the duration of the phone call) would have to be counted as working time. A requirement to carry a cell phone does not generally prevent the employee from engaging in personal activities.

On-call considerations

When evaluating whether an employee should be paid for time spent on-call, the most common considerations are the expected response time and the frequency of the calls.

A short response time, such as 10 minutes to report in person, might prevent the employee from traveling or engaging in personal activities. A longer response time, such as one hour, would allow more freedom in personal activities.

Also, an employee who regularly gets interrupted may be unable to engage in personal activities, even if the time for responding is reasonable. For example, if an employee can expect to receive three or four calls during a Saturday, and must respond in person to each call, the employee may not be able to use the time effectively for personal activities, even if the employee is allowed up to one hour before responding. Frequent interruptions are even more limiting when combined with a short response time.

The ability to trade on-call responsibilities can be a factor as well. If two or more employees are on-call and the first person is not available, contacting the second person would relieve the first of any obligation. This should allow more freedom for personal activities.

Certain agreements with the employee can also be a factor. For example, if the employee must remain at home while on-call, but agrees that this is not unduly restrictive (and this agreement was not imposed by the employer), then the on-call time is less likely to be deemed hours worked.

The point is that even when employees are not engaged in job duties, they may have to be paid for waiting time if they cannot use the time effectively for personal activities.