Waiting to Exhale: When to Pay Employees for “Idle Time”

Recently, we discussed the issue of a call center employer who took deductions for employees’ “idle time” while on duty, both at breaks and while waiting for their next work assignment.  As a follow up to that post, I wanted to discuss how the Fair Labor Standards Act (FLSA) regulations define “idle time” or “waiting time” for purposes of hours worked calculations.  Under Sections 785.14-16 of the regulations, waiting or idle time is any time that employees are not performing the work for which an employer hired them (with authorization–we’re not talking about disciplinary issues here), but are still subject to the direction of the employer or the constraints of a job.  Typically, idle time arises in three contexts:

• on-duty
• off-duty
• off-duty, but on-call

We will address “on call” and off duty time generally in a separate post.  Today, let’s focus on what happens while employees are on duty and idle.

On-Duty Idle Time under the FLSA

As the call center company found out in our previous post on this topic, employers must count as hours worked any time that employees spend on duty but idle.  Absent technological solutions to track these times carefully, this usually is not a problem as this kind of idle time often lasts for a short time and tends to be unpredictable, both in terms of frequency and duration.  During idle times, employees normally cannot leave the workplace (and maybe not even their workstations/work areas).  Because an employee cannot use this idle time for their own personal pursuits, the FLSA requires employers to pay employees for it, even if it can be tracked and isolated from working time.  This is true even if the employee can engage in some personal activity, such as browsing the Internet or using a smartphone.  That nominal personal use during an unpredictable idle period will not overcome the overarching control of the employer.

This seems straightforward at first glance, and normally it is.  An employee waiting for the phone to ring with the next service call, waiting for the next delivery truck to arrive, waiting for a machine to be turned on or repaired, or waiting to be dispatched are common examples of compensable idle time.  In each case, the employee

• is not engaged in the work for which they were hired;
• remains subject to the direction of the employer;
• can not able to effectively use the time for personal pursuits; and
• usually has little indication as to the frequency or duration of the idle time.

However, these situations can and often do get more nuanced.  In past audits, the Department of Labor has found that idle time spent waiting for computers to boot and software programs to load qualified as compensable time.  While activities such as booting up a computer may represent only a few minutes of an employee’s day, those few minutes add up quickly when aggregated over months or years and numerous employees.

On the other side of the nuanced line, employers may confront a scenario where an employee comes into the office, turns on the computer, and then leaves the workstation to use the bathroom, get coffee, or talk to friends.  If the only “work” an employee performs is pressing a power button and there is no real engaged “idle time,” then the time involved may be too small to track and may not represent idle time at all since the employee can use the time for personal pursuits.

Upshot for Employers

Employers also often overlook that employees who work in the field can also have on-duty idle time.  Repair technicians, installation engineers, tower climbers, and others may experience idle time while on duty due to the nature of their work.  Waiting for access to a job site, for equipment to arrive, or others to complete tasks are all examples of potentially compensable idle time. Remember in this discussion that states may have their own rules about idle time and standards for paying employees.  Idle time is a facet of nearly any job at some time or another.  Identifying the differences and avoiding putting too fine a point on your pay practices can limit exposure to unnecessary wage and hour claims for uncompensated idle time.