Hot Topic - Wages for Waiting

Employees must be paid for work they perform. It seems pretty simple, but in employment law there are always complicated situations and circumstances that cannot be decided by bright-line rules. Even the question of when an employee is considered “working” can be difficult to answer when workers are waiting, “on call,” or on a break, even if they are not actively working.

It is commonly said in the caselaw that employees are entitled to wages for time spent “engaged to wait” but are not required to be paid for time spent “waiting to be engaged.” But what does this mean?

In general, the more employees are constrained during “on call” or waiting periods, the more likely it is that they are entitled to wages for time spent on call. For example, employees who must stay at her office or within a five minute drive of a certain location are highly restricted in the types of personal activities they may engage in during “on call” times. When employees do not have formal restrictions but have so many calls during “on call” periods that they are in fact unable to enjoy free time, they are more likely to be entitled to wages.

The federal regulations use the following examples of employees who are “engaged to wait” and therefore should be compensated: a messenger doing a crossword puzzle while waiting for assignments, a fireman playing checkers while waiting for fire alarms, a repair man waiting for a customer to ready the premises he is to repair. In all of these cases, the waiting period is unpredictable and the worker has relatively few options for using that time for personal matters.

Another important piece of this puzzle is the distinction between “rest” and “meal” periods. “Rest” periods, typically 20 minutes or shorter, must be paid as working time. Meal breaks that are at least 30 minutes may be unpaid, but only if the employee is relieved of work obligations at the time. An employee who is required to eat at her desk is probably still working.

Two recent cases provide some real-world examples of how courts address these knotty issues.

In Naylor v. Securiguard, Inc., 801 F.3d 501 (5th Cir. 2015), a federal circuit court examined a situation where security guards on a naval base were required to take their meals at a certain place on the base. Certain guards could walk to the meal place in a few minutes, but others needed to drive up to 12 minutes roundtrip in company cars, in which they were not permitted to eat, drink, smoke or talk on the phone. The Court concluded that 1) the guards who traveled only a couple minutes to the meal place were not entitled to be paid during the meal break and 2) the guards who traveled longer distances should go to trial so that a jury could decide whether the mandated travel time made their 30 minute break more akin to a shorter rest period for which the guards should be paid.

In Jones v. Hoffberger Moving Servs. LLC, 92 F.Supp.3d 405 (D.Md. 2015), a federal court issued a decision in a case where employees of a moving company sometimes arrived at the company’s warehouse prior to going to job sites. Employees sometimes performed work, such as loading equipment, at the warehouse but sometimes only waited for a van to take them to the job site. The Court made three rulings regarding when employees should be paid: 1) employees must be paid for any time spent performing work at the warehouse but not for time when they were only waiting for a van to take them to a job site; 2) employees could be paid for travel time from the warehouse to the job site only if they had performed work at the warehouse that day, since the “workday” began when employees actually performed work; and 3) employees must be paid starting immediately upon their arrival at the job site, even if equipment they needed to work had not arrived.

The Court differentiated between employees being “engaged to wait” at job sites, for which they should be paid, and employees “waiting to be engaged” at the warehouse if there was not work for them to perform. In the end, the Court concluded that the case should go to trial so a jury could determine how much time employees had actually worked and how much overtime they were entitled to receive.

It’s clear that “wages for waiting” is a lot more complicated than simply asking whether an employee is fixing a car, serving customers, or sitting at a desk. Even if you’re reading a book, you may still be working if your time is largely controlled by your employer. If you are allotted an hour lunch break but are constantly checking up on customers or reading e-mail, you are still performing your duties while you eat.

If you have any questions about whether you should be receiving wages for time you think you may be eligible for wages, we at Pelton & Associates are happy to hold a free consultation to discuss your situation. You can call us at (212) 385-9700 or send us an e-mail through the form on our website.