Under federal law, you must pay your employees for any of their time that you control and that benefits you. Generally, this includes time that the employee cannot spend as he or she wishes, even if that time is not spent working. For example, an employee who has to cover the phones while eating lunch is entitled to be paid for that time, even if the phones aren't ringing.
Sometimes, it can be hard for employers to figure out when an employee is entitled to pay. This article discusses the two areas that give employers the most trouble: on-call time and travel time. We discuss only the federal rules; many states have similar laws, but some give workers the right to be paid in more situations. To check your state's law, contact your state labor department.
If employees are required to stay on your premises or at a customer's location while waiting for a work assignment, you must pay them even if they do not spend that time actually working. For example, a mechanic who knits a sweater while waiting for a customer to arrive, a corporate trainer who must wait for the client to gather employees and set up equipment, or a secretary who plays solitaire on a computer while waiting for an assignment is entitled to be paid for that time.
If employees must be on-call elsewhere, you must pay them for those hours over which they have little or no control and which they cannot use for their own enjoyment or benefit. If you place significant restrictions on an employee who is on call, that employee should be paid. There are few hard and fast rules in this area -- but generally, the more constraints you put on an employee, the more likely it is that he or she should be paid.
Here are some factors a court or agency might consider when deciding this issue:
- How many calls an employee gets while on call: The more calls an employee has to respond to, the more likely he or she is entitled to pay, particularly if any of the calls require the employee to report to work or give advice or guidance over the phone.
- How long an employee has to respond after a call: If you require employees to report in immediately after being paged, for example, they have a better argument that they should be paid for their time.
- Where an employee can go while on call: Employees who must stay within a limited distance from work are more likely to be entitled to compensation.
- What employees can do while on call: If you set a lot of rules for on-call workers, such as a ban on alcohol or a requirement that they respond quickly and in person to calls (which can be difficult if the employee is out running or taking the kids to school), you may have to pay for this time.
Although you do not usually have to pay an employee for time spent commuting, you must pay for travel time if that time is part of the job. For example, if your employees are required to go out on service calls, the time spent traveling to and from the customers must be paid. Also, if you require employees to take employer-provided transportation from a central location to the worksite, you may have to pay for this time.
Even if an employee's job does not ordinarily involve travel, you may have to pay for travel time if the employee is required to come to the workplace at odd hours to deal with emergency situations.
Special rules apply to employees who occasionally travel to another location for business. The rules depend on whether the trip includes an overnight stay.
If you send an employee on a one-day business trip, you must pay for the time the employee spends traveling. However, you can subtract the time it takes the employee to get to the airport or public transportation hub as commuting time, even if it takes the employee longer than his or her ordinary commute to the worksite.
Tom lives in Greenbrae, California, and regularly commutes to his job in San Francisco. His commute takes about 1/2 hour each way by bus. His employer sends him to Los Angeles for a business trip. Tom leaves home at 6 a.m. to catch an 8 a.m. flight. He spends all day with a customer in Los Angeles, then dashes off to the airport to catch his 6:30 p.m. flight, which lands at 8 p.m. Tom arrives home by 9 p.m. He is entitled to be paid for 12 hours of work; the time he spends commuting between his home and the airport is considered noncompensable commuting time, even though it's quite a bit longer than his usual commute.
When an employee spends more than a day out of town, the rules are different. Of course, you must pay the employee for all of the time he or she spends actually working. However, whether you have to pay the employee for time spent in transit depends on when the travel takes place.
Employees are entitled to pay for time spent traveling during the hours when they regularly work (the period of the day they regularly work), even if they ordinarily work Monday through Friday but travel on the weekend. For example, if Tom usually works 9 to 5, and leaves the office at 3 p.m. to catch a flight for an overnight business trip, he should be paid for the two remaining hours in his day, but not for the rest of the time he spends traveling that evening. But if Tom returns home on a 10 a.m. Saturday flight that takes four hours, he is entitled to be paid for all of that time. Even though he traveled on the weekend, the flight took place during his ordinary hours of weekday work.