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Waiting to be Engaged or Engaged to Wait? The Fair Labor Standards Act Makes a Distinction – Do You?

The Human Equation, Inc.

FLSA Online Training
Train your managers and supervisors on the basic wage and hour requirements set forth by the FLSA. Earn continuing education credits.
To the uninitiated, compliance with the Fair Labor Standards Act (FLSA) appears to demand little more than the simple task of multiplying the number of hours worked by the appropriate wage. However, those charged with ensuring compliance with the federal law that establishes the minimum wage and that governs the payment of overtime compensation know all too well that application of the FLSA’s provisions is rarely simple.

The FLSA lays many traps for the unwary. Its intricate and sometimes counterintuitive provisions require not only diligence but knowledge of the manner in which specific situations must be handled in order to avoid violations. One such situation involves distinguishing between a worker who is waiting to be engaged and a worker who is engaged to wait. The distinction is critical because one worker is entitled to compensation for the time spent waiting, while the other may not be.

An employee “engaged to wait” is generally considered to be working under the FLSA, and therefore entitled to compensation. Alternatively, an employee who is simply “waiting to be engaged” is generally not considered to be working. While the distinction may be obvious in some cases, oftentimes it is not easy to determine whether an employee is “on the clock” for the purpose of calculating the number of hours worked. Thus it is important to examine the nature of the time spent waiting.

Whether waiting time constitutes hours worked under the FLSA depends on the particular circumstances. The conclusion is highly dependent on the facts and it must be determined in accordance with common sense and the general concept of work or employment. According to the United States Supreme Court, courts called upon to determine whether time spent waiting constitutes compensable time must scrutinize and construe the agreement between the particular parties, the practical construction of the working agreement, the nature of the service, its relation to the time spent waiting, and all of the surrounding circumstances.

The general rule emanating from early Supreme Court cases is that if the waiting time is spent primarily for the benefit of the employer, it is compensable. And, determining whether the time is spent for the employer’s benefit is “dependent upon all the circumstances.” While the Supreme Court did not attempt to describe such circumstances, later judicial decisions have fleshed out the rule, utilizing a standard of how much restraint is placed on an employee who is waiting to be engaged. Thus, the degree to which an employee is free to engage in personal activities is integral to determining whether the time spent waiting is compensable.

According to the regulations interpreting the FLSA, “a stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, [a] fireman who plays checkers while waiting for alarms and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity.” Since these employees are unable to effectively use the time spent waiting for their own purposes, the time essentially belongs to and is controlled by the employer. Accordingly, in all of these examples, the time spent waiting is an integral part of the job. As such, the employees are engaged to wait, and are therefore entitled to be compensated for their time.

By contrast, periods during which an employee is completely relieved from duty and which are long enough to enable him or her to use the time effectively for his or her own purposes are not considered hours worked. To illustrate the distinction, consider the following example set forth in the regulations.

A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period. If the driver reaches his destination and while awaiting the return trip is required to take care of his employer's property, he is also working while waiting. In both cases the employee is engaged to wait. Waiting is an integral part of the job. On the other hand, if the truck driver is sent from Washington, DC to New York City, leaving at 6 a.m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p.m. when he again goes on duty for the return trip, the idle time is not working time. He is waiting to be engaged.

To be considered completely relieved from duty, and thereby to be considered waiting to be engaged, the employee must be definitely told in advance that he or she may leave the job and the he or she will not have to commence work until a definitely specified hour has arrived. In such cases, determining whether the time is long enough to enable the employee to use the time effectively for his or her own purposes depends upon all of the facts and circumstances.

Correctly distinguishing between an employee waiting to be engaged and an employee engaged to wait is crucial to avoid running afoul of the FLSA’s requirements. Unfortunately, since the conclusion is highly dependent upon the particular facts and circumstances, it is virtually impossible to implement a single rule of universal applicability. However, employers wishing to correctly apply the rule can increase the likelihood of reaching the correct conclusion by asking some simple questions.

For example, is the convenience store cashier free to leave the premises and go to the mall between customers? Is the pizza delivery driver free to take in a movie after making her first delivery of the day? Did these employees know in advance that they were free to leave the premises for their own purposes? If the answer is no because the employee must be available to assist the next customer or to make the next delivery, then the employee is not completely relieved from duty and is therefore engaged to wait, rather than waiting to be engaged. Therefore, the time spent waiting is compensable.

While this process is far from comprehensive, it will usually serve to place the employer in the right frame of mind when considering whether an employee’s time spent waiting is considered compensable. If a particularly difficult scenario repeatedly arises, employers would be wise to consult with legal counsel in order to ensure compliance with the FLSA’s requirements. Otherwise, employers may find that they have failed to properly undertake the “simple” task of multiplying the number of hours by the appropriate wage.

Learn more about the FLSA’s requirements.

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The Human Equation's newsletters and publications are intended as an information source for the clients and friends of the firm. Their content should not be construed as legal advice, and readers should not act upon the information in these publications without professional guidance. Please note that newsletters and publications that are archived by The Human Equation or are not updated after initial publication and may not contain the most current information available.