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: Many lawsuits filed under the FLSA and state wage and hour laws every year include claims for unpaid waiting time and/or on-call time. HR should remain vigilant about properly compensating employees.
Author: Michael Cardman, Legal Editor
Updated to reflect the forthcoming Chicago Fair Workweek Ordinance.
Updated to include information on a California Court of Appeal ruling concerning on-duty meal breaks.
Updated to reflect requirements regarding breastfeeding breaks, effective July 28, 2019.
Updated to reflect amendments to the Kentucky Civil Rights Act regarding breastfeeding breaks, effective June 27, 2019.
Updated to reflect forthcoming amendments to the breastfeeding breaks law.
Updated to reflect a US Department of Labor (DOL) opinion letter concerning civic or charitable work.
Updated to reflect amendments to the New Jersey Law Against Discrimination regarding breastfeeding employees, effective January 8, 2018.
Use this workflow to determine whether the time that a nonexempt employee spends waiting, on call, on a meal break or on a rest break counts as "hours worked" under the Fair Labor Standards Act (FLSA).
New York City has issued proposed rules that define several key terms and provide further details about the requirements of the Fair Work Practices Law (also known as the Fair Workweek Law).
Enhanced with information about the day of rest law.
HR guidance on complying with the FLSA requirements for employee waiting time and on-call time.