Overview: "They also serve who only stand and wait," the 17th Century poet John Milton wrote in one of his sonnets.
Recognizing this, the authors of a less poetic work, the Fair Labor Standards Act (FLSA), held that employees must sometimes be paid for time they spend waiting or on call.
Employers must be careful that they don't create a minimum wage and/or overtime liability by requiring employers to stay on call or to wait to perform work.
In general, time that employees spend waiting or on call counts as hours worked if it is primarily for the benefit of the employer and its business. Many factors go into this determination. For example, employers can require employees to be accessible by phone or pager while they are on call, as long as they are otherwise free to use the time for their own purposes.
Making matters even more complicated for employers is the fact that there are also variations in state requirements for waiting time and on-call time.
Trends: In recent years, plaintiffs in lawsuits have invoked the FLSA's waiting time and on-call time regulations in making claims that certain activities that haven't traditionally been considered waiting time or on-call time - such as checking email or traveling in a company van - count as working time. They had hoped to apply the standard that compensable waiting time is primarily for the employer's benefit to these activities. Most of these arguments have been rejected, but HR should remain vigilant for the possibility that plaintiffs may eventually succeed in broadening the existing scope of these regulations.
Author: Michael Cardman, Legal Editor
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