In a BLR webinar entitled "Travel Pay: Proven Strategies for Avoiding the Next Big Wave of Wage and Hour Lawsuits," Mark E. Tabakman, Esq., partner in the nationwide law firm Fox Rothschild, LLP described the scenarios in which Waiting Time and On-Call Time would be compensable work time.
- The key question for determining if an employee must be compensated for waiting time and on-call time is whether the time in question can be used effectively for the employee's personal purposes (which depends on the facts of each individual case).
- An employee who is on duty and waiting to be assigned a task is considered to be working. Generally, an employee is on duty when the time is controlled by the employer and is of relatively short duration. However, when the employee is completely relieved of duty (i.e., is allowed to leave the premises and is told exactly when to return), the time need not be counted as hours worked.
- For example, the time an employee spends waiting for a meeting to begin, the time a factory worker spends talking with co-workers while waiting for a machine to be fixed, the time a repair person spends waiting for the customer to get the premises ready, must generally be counted as work time.
- If employees are completely relieved of duty for a period of time that is long enough to enable them to use the time effectively for their own purposes, such time need not be counted as hours worked. In such situations, the employees must be told in advance that they may leave the job and that they will not have to commence work until a specified hour. So if a needed machine breaks and cannot be fixed for 4 hours, the employee does not have to be compensated for the time spent waiting if the employer allows the employee to leave and return at a later time.
- On-call time is different than waiting time, as it usually means that the employee is not on the employer's premises. On-call time must be counted as hours worked when the employee is required to remain on-call so that his or her time is so restricted that the employee cannot use it effectively for personal purposes.
- Modern technology allows employers and employees to be in constant contact, and most companies use a variety of electronic devices to notify on-call employees to return to duty. However, simply carrying the device does not usually qualify as hours worked. If the employee is not free to effectively use the time for his or her own personal purposes, the time should be counted as hours worked.
Mark E. Tabakman, Esq. is a partner in the nationwide law firm Fox Rothschild, LLP (www.foxrothschild.com). He advises clients throughout the country on all aspects of labor relations and employment law, as well as the development of corporate employment policies. Also, he publishes and maintains a wage-hour blog to provide the latest information and observations on new developments in wage-hour law.