Wait, I can get paid for doing nothing?

For the sloths among us, our headline may sound like a guarantee for winning the lottery, but be warned, if it sounds too good to be true, it probably is. And, it is; because we’re about to pull a bait and switch.

If you’re wondering what we’re going on about, we’re discussing when waiting to work gets paid. The US Department of Labor (DOL) uses two terms when describing employees who are waiting to work. The first is “waiting to be engaged” and the other is “engaged to wait.” One gets paid; the other does not. Which one is which? Ya really wanna know? Well, we’re really gonna tell ya!

An employee “engaged to wait” is considered to be working under the Fair Labor Standards Act (FLSA). An employee who is “waiting to be engaged” is not. Those “engaged to wait” get paid; those “waiting to be engaged” do not.

So, what exactly is “waiting to be engaged” and what is being “engaged to wait?” Let us tell you a tale of two cities and two truck drivers in waiting.

Once upon a time, two truck drivers took their loads from the nation’s capital to the twice-named city that never sleeps. From departure at 6 a.m. until arrival at noon, the two truck drivers transported their loads to their destination.

Both truckers drove their shipments to the job site. Driver one then waited nearby to take care of their employer’s property while goods were unloaded from the vehicle. Driver one was “engaged to wait” because it was an essential part of their job and therefore hours worked.

Driver two, however, took off to see the lights of Broadway and the Statue of Liberty since they were completely and specifically relieved from all duty. At 6 p.m., driver two returned to drive their truck back to the city of the Smithsonian and the Lincoln Memorial. Driver two was “waiting to be engaged” because seeing the sights was not an essential part of their job.

It is not always as easy to determine whether or not an employee is “on the clock” as it is in the truckers’ example. Determining if waiting time constitutes hours worked is fact dependent in nature, so let’s look at a major criterion the courts use to evaluate these situations.

One of the core factors courts consider is who has control of the employee’s time. Time belonging to, controlled by or spent for the benefit of the employer is compensable, or paid, time. For the employee to not be paid for time spent waiting, the employer must specifically communicate that the employee is completely relieved from duty.

To fully understand how the FLSA defines the two types of waiting, read the Hours Worked regulations and DOL guidance. To understand the fact dependent nature of court cases, search the Web using the terms “waiting to be engaged” or “engaged to wait.” Read the legal commentary on two or more cases to see how the specific circumstances of each case guided the court’s decision.

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