Do you know when you should pay employees for waiting time? Employees must be compensated for all time spent waiting unless all of the following steps are taken.
Step 1: Completely Relieve the Employee From Any Work Duties
Although the de minimis doctrine of the Fair Labor Standards Act (FLSA) allows employers to disregard infrequent and insignificant periods of time when paying the minimum wage, it is possible that even the slightest amount of work - such as responding to an email or dropping off a work-related letter - could violate the requirement that an employee must be completely relieved from duty.
Step 2: Make Sure the Periods of Waiting Time Are Long Enough
Periods of waiting time must be "long enough to enable the employee to use the time effectively for his or her own purposes," according to federal regulations. Unfortunately, the regulations do not state exactly how long a waiting period must be to qualify. The example used in the regulations is six hours. One federal appeals court has ruled that periods of three to five hours also satisfy this requirement. Ultimately, such determinations must depend on all of the circumstances involved.
Step 3: Inform the Employee in Advance That He or She May Leave the Premises
There is no requirement that the employee be informed in writing. But in the event of a lawsuit or an investigation by the U.S. Department of Labor, a written notice signed and acknowledged by the employee creates a paper trail that would provide evidence the employee has been properly informed.
Step 4: Advise the Employee of When He or She Must Return to Work
As with Step 3, there is no requirement that the employee be given written notice of when he or she must return to work. But a written acknowledgment can help demonstrate that this requirement has been fulfilled.
Step 5: Check State and Local Requirements
State and/or local rules may necessitate payment for waiting time even if it is not required under federal law.
Step 6: Confirm There Are No Conflicting CBAs or Employment Agreements
A collective bargaining agreement or other employment agreement also may necessitate payment for waiting time even if it is not required under federal law.
The U.S. Department of Labor (DOL) has a fact sheet that provides general information concerning what constitutes compensable time under the FLSA.
For questions reach out to your FrankAdvice HR Consultant.