The FLSA requires that employees be paid for on-call time under some circumstances. Determining the number of “hours worked” each work week depends on your employer must pay you for on-call time, or waiting time. The FLSA does not contain a definition of “work” or of compensable time, but the Supreme Court has set forth tests for determining compensable time: Employees must be paid for all time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued for the benefit of the employer or his business” and for idle time or time spent in incidental activities.
Under this test, time actually spent in production and related activities is clearly compensable. This includes not only the normal work day, but also any other time employees are required or permitted to perform work. Work not required or requested by the employer counts as hours worked if the employer has actual or constructive knowledge of it. For example, if an employee arrives early and performs tasks incidental to the normal working day, such as starting machines or answering the phone, that time is compensable provided the employer knew or should have known of the employee’s work activities. The same is true if an employee stays late to finish a project or takes work home to complete. To avoid liability for this type of work the employer must forbid any unauthorized work outside the normal work day.
Whether time not spent in physical or mental exertion is compensable depends on a variety of factors, including the relationship of the activity to the employee’s principal duties, the nature and extent of the restrictions the employer imposes on the employee during that time, the primary beneficiary of the activity, and any agreement between the employer and the employee. Resolution of the question depends on the specific facts of a case, although general guidelines have developed over the years for particular types of nonproductive activities.
Situations involving waiting time (or on-call time) may turn on whether the employee is “engaged to wait” and “waiting to be engaged.” Courts have held that on-call time is not compensable if the employee is generally free to do as she pleases while on call. So the critical issue in most on-call cases is whether the employee can make effective use of the time for their own purposes. If not, then the waiting time is for the employer’s benefit because the employee has been “engaged to wait” and the time is compensable. So time spent waiting to work during the work day because of delivery delays, a shortage of customers, machinery breakdowns, or similar reasons is normally compensable.
Even if employees are permitted to leave the employer’s premises, courts generally find the waiting time compensable if it is too short for employees to use the time for their own benefit. On-call time can be compensable even during periods when employees are technically not on duty, if they are required to wait or remain at or near the employer’s premises. On the other hand, if employees are completely relieved of duty during the waiting time and the periods are long enough to permit them to pursue their own activities, they are “waiting to be engaged,” and the time is not compensable. This can be true even in employment settings where the employee has agreed to remain on the employer’s premises, if in fact she has been relieved of duty.
A similar analysis applies to employees who are “on call” and must be available to return to work on short notice. Obviously, these employees are not completely free to do whatever they want when they are off duty but on call. Depending on the employer’s requirements, they may not be able to leave their homes, travel out of town, or even be alone with their children without having a babysitter on call too. So if an employee must remain on the employer’s premises or so near it that she cannot engage in personal activities, the on-call time is compensable. If on the other hand, employees are permitted to go home while on-call, the on-call time is rarely found compensable, regardless of the relative restrictions on their movements.
If an employee is required to report to one location, such as the employer’s dispatching office, to receive assignments or instructions, and then travel to a job site, the time spent traveling from the office to the job site is compensable. If travel is part of an employee’s principal job activities, the travel time is compensable. Overnight travel is compensable if it occurs during regular working hours, but not otherwise, unless the employee is required to perform work while traveling. In 1996, Congress amended section 4(a) of the Portal-to-Portal Act to add a provision concerning compensation for use of employer vehicles. Under the amendment, the use of an employer’s vehicle for commuting and incidental activities is not part of the employee’s principal activities and therefore not compensable if the use of the vehicle is within the employee’s normal commuting area and subject to an agreement between employer and employee.
Rest and meal periods are governed by straightforward rules established by the Department of Labor. Break periods of twenty minutes or less are compensable. Meal periods are not compensable if employees are completely relieved of duty during the break time. If employees are required to remain at their work station while eating, they are not completely relieved of duty and must be paid for the time. Several courts of appeals have held that employees who remain on call during their meal period need not be compensated if they are not “primarily engaged in work-related duties” during that time. This test is also referred to as the “predominately-for-the-benefit-of-the-employer” standard; if the meal time is not predominately for the employer’s benefit, it is not compensable.
Employees who reside on their employers’ premises permanently or for extended periods of time are probably not working the entire time they are on the premises. The Department of Labor will recognize any “reasonable agreement” between the parties concerning exclusion of sleep time and time spent in other personal pursuits. Three sections in the FLSA’s Hours Worked Regulations, 29 CFR Part 785, describe the conditions under which employees are considered to be working even though some of the time is spent sleeping or in other activities:
• Section 785.21 Less than 24-hour duty;
• Section 785.22 Duty of 24 hours or more; and
• Section 785.23 Employees residing on employer’s premises or working at home.
In evaluating the application of the section 785.23 home-worker exception applies, the Court will consider whether “although the employees were required to remain on the premises during the entire time, the evidence shows that they were rarely interrupted in their normal sleeping and eating time, and these are pursuits of a purely private nature which would presumable occupy the
employees’ time. The fact that an employee resides on the employer’s premises “does not mean that the employee is necessarily working 24 hours a day.” An employer may exclude payment for the extended periods of inactivity that occur when an employee resides on the premises, because the employee is generally able “to carry on a normal routine of living” during such periods. These principles are set forth in the regulations at section 785.23. In addition, under section 785.23, an employer may exclude payment for sleep time if there is a reasonable agreement with the employee residing on the premises that takes into account all of the pertinent facts. Any agreement must take into account not only the time actually spent working, but also the time when the employee may engage in normal private pursuits, with sufficient time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he or she may leave the premises for personal reasons. The agreement must also consider such relevant factors as the degree to which the use of the employee’s personal time is limited or restricted by the conditions of employment and the extent of interruption to eating and sleeping periods. It should be noted that whether an employee is free to use time for personal pursuits will depend on the facts in each case, notwithstanding the provisions of any written agreement.
So an employee who resides on the employer’s premises on a permanent basis or for extended periods of time is not considered to be working all the time she is on the premises if she may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his employer and also to a telephone operator who has the switchboard in her own home. Whether they were on duty or not and which apparently could be pursued adequately and comfortably in the required circumstances.
If you believe you may be entitled to overtime pay and would like to speak to a lawyer, contact:
Denver Wage and Hour Attorney Gregory A. Hall
Law Office of Gregory A. Hall
3570 E. 12 Avenue, Suite 200
Denver, CO 80206