Waiting time as working time (on call)

Scope

Waiting time as working time applies to employees who are “on call” or “engaged to wait,” both of which are considered working time. The rule also applies to employees who work away from the plant. In these situations, the employees’ time belongs to the employer and cannot be used for their own purposes, even if they engage in other activities while waiting for work.

Regulatory citations

• 29 CFR 785.36 — Home to work in emergency situations.

Key definitions

• None

Summary of requirements

Waiting time. Whether waiting time is hours worked depends upon the particular circumstances. An employee may be “engaged to wait” (which is work time) or may be “waiting to be engaged” (which is not work time). For example, a secretary who reads a book while waiting for dictation, or a fireman who plays checkers while waiting for an alarm, is “working” during such times. These employees have been “engaged to wait” and their time counts as “work” even though they are not performing specific job tasks. Their time belongs to the employer and cannot be used for their own purposes.

The rule also applies to employees who work away from the plant. For example, a repair man is working while he waits for a 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 and are usually of short duration. However, the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. The employee is engaged to wait.

Non-work hours. Periods during which employees are completely relieved from duty and which are long enough to enable them to use the time effectively for their own purposes are not hours worked. Employees are not completely relieved from duty and cannot use the time effectively for their own purposes unless definitely told in advance that they may leave the job and not commence work until a specified time. Whether the time is long enough to enable employees to use the time effectively for their own purposes depends upon all of the facts and circumstances of the case.

For example, a truck driver who has to wait at or near the job site for goods to be loaded is “working” during the loading period. The truck driver is engaged to wait. On the other hand, if the truck driver leaves his company at 6 a.m.,arrives at noon, and is completely and specifically relieved from all duty until 6 p.m. (when going on duty for the return trip) the idle time is not working time. The truck driver is is waiting to be engaged.

On-call time. An employee who is required to remain on call on the employer’s premises (or so close that the time cannot be used effectively for personal purposes) is working while “on call.” An employee who is required to remain on call at home or from a reachable location is not working (in most cases) while on call. Constraints on the employee’s freedom could require this time to be compensated.

Typically, the issue comes down to the degree of control imposed by the employer. For example, if an employee “on call” is asked to refrain from drinking alcohol and to remain within 50 miles of the worksite, that employee is not under substantial control. The time spent on call is probably not considered working time (though many employers choose to compensate employees anyway, often at a lesser wage rate or “per day” rate).

How to determine “working” time. The more limitations that are imposed, the more likely that the on-call time will be “working” time. For instance, if an on-call employee is expected to respond in person (arrive at the business location) within 10 minutes, the employee is probably “working” while on call, and all hours would have to be counted as work time.

On the other hand, if an on-call employee is simply expected to assist in resolving any problems over the phone, the employee is probably not “working” while on call, and only the actual time spent conducting business (i.e., the duration of the phone call, or any work conducted between calls) would have to be counted as work time.

Emergency call-in. If an employee is traveling to a customer facility to complete emergency work, the clock must start when the employee leaves home. However, if the employee is reporting to a regular company location to complete emergency work, the answer is unclear. The federal Wage & Hour Division has literally refused to offer guidance. The “safe” option is therefore to start the clock when the employee leaves home. Here is the applicable regulation (bold added): 785.36 — Home to work in emergency situations. There may be instances when travel from home to work is overtime. For example, if an employee who has gone home after completing the day’s work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer’s customers, all time spent on such travel is working time. The Divisions are taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to the regular place of business to do a job is working time.

Essentially, the issue has been left up to states (or courts) to decide on a case-by-case basis. Most state labor agencies will accept wage claims for unpaid working time, and could rule either way. Often, state agencies take a position that is most favorable to the employee.

Sleeping time and other activities. Under certain conditions an employee is considered to be working even though some of the working time is spent sleeping or in certain other activities.

Duty less than 24 hours. An employee who is required to be on duty for less than 24 hours is working even though the employee is permitted to sleep or engage in other personal activities when not busy (see the firefighter example above). It makes no difference that the firefighter is furnished facilities for sleeping. The time is given to the employer. The firefighter is required to be on duty and the time is worktime.

Duty more than 24 hours. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from “hours worked” bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

If sleeping periods are more than 8 hours, only 8 hours can be credited. If there is no expressed or implied agreement to the contrary, the 8 hours of sleeping time (and even meal periods) count as hours worked. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire period must be counted. As indicated, if the employee cannot get at least 5 hours’ sleep during the scheduled period the entire time is working time.