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Facts may show that the employee was engaged to wait, or they may show that he waited to be engaged.”
.” 13 Such questions "must be determined in accordance with commonsense and the general concept of work or employment.
(1) Waiting while on duty.-A stenographer who reads a book while waiting for dictation, a messenger who works a crossword puzzle while awaiting assignments, a fireman who plays checkers while waiting for alarms, and a factory worker who talks to his fellow employees while waiting for machinery to be repaired are all working during their periods of inactivity. The rule also applies to employees who work away from the plant. For example, a repair man is working while he waits for his employer's customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.15
(2) Waiting time off duty.-Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked. He is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived.
Whether the time is long enough to enable him to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.
A truck driver who has to wait at or near the job site for goods to be loaded is working during the loading period. If the driver reaches his destination and while awaiting the return trip is required to take care of his employer's property, he is also working while waiting. In both
cases the employee is engaged to wait.16 Waiting is an integral part of the job. On the other hand, for example, if the truck driver is sent from Washington, D. C., to New York City, leaving at 6 a. m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p. m. when he again goes on duty for the return trip, the idle time is not working time. He is waiting to be engaged.17
(3) On-call time.-An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while "on call." 18 An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.
(c) Rest periods.-Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.19
(d) Meal periods.—Bona fide meal periods are not worktime. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.20 For
16 Skidmore v. Swift, 323 U. S. 134, 137 ; Walling v. Dunbar Transfer & Storage, 3 W. H. Cases 284; 7 Labor Cases, par. 61565 (W. D. Tenn.).
17 Gifford v. Chapman, 6 W. H. Cases 806 : 12 Labor Cases, par. 63661 (W. D. Okla.); Thompson v. Daugherty, 40 F. Supp. 279 (D. Md.).
18 Armour & Co. v. Wantock, 323 U. S. 126; Handler v. Thrasher, 191 F. 2d 120 (C. A. 10); Walling V. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S. D. Ga.).
19 Compensable time of rest periods may not be offset against other working time such as compensable waiting time or oncall time, Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S. D. Calif.).
20 Culkin v. Glenn L. Martin, Nebraska Co. 97. F. Supp. 661 (D. Nebr.), affirmed 197 F. 2d 981 (C. A. 8), certiorari de. nied 344866, rehearing denied 344 U. S. 888, and Thompson v. Stock & Sons, 93 F. Supp. 213 (E. D. Mich.), affirmed 194 F. 2d 493 (C. A. 6); Biggs V. Joshua Hendy Corp., 183 F. 2d 515, 187 F. 2d 447 (C. A. 9); Walling v. Dunbar Transfer and Storage Co., 3 W. H. Cases 284 ; 7 Labor Cases, par. 61565 (W. D. Tenn.); Lofton v. Seneca Coal and co., 2 W. H. Cases 669 ; 6 Labor Cases, par. 61271 (N. D. Okla.); affirmed 136 F. 2d 359 (C. A. 10), certiorari denied 320 U. S. 772.
13 Skidmore v. Swift & Co., 323 U. S. 134. 16 Central Mo. Tel. Co. v. Conuell, 170 F. (20) 641 (C. A. 8). 15 Skidmore v. Swift, 323 U. S. 134, 137.
example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating
It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during his meal period.
(e) Sleeping time and certain other activities.-Under certain conditions an employee is considered to be working even though some of his time is spent in sleeping or in certain other activities.
(1) Less than 24-hour duty.-An employee who is required to be on duty for less than 24 hours is working even though he is permitted to sleep or engage in other personal activities when not busy.21
A telephone operator, for example, who is required to be on duty for specified hours is working even though she is permitted to sleep when not busy answering calls. It makes no difference that she is furnished facilities for sleeping. Her time is given to her employer. She is required to be on duty and the time is worktime.
(2) Duty of 24 hours or more.—Where an employee is required to be on duty for 24 hours or more, the employer and employee may agree 22 to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep.23
If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked.
If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted.24 For enforcement purposes, the Divisions have adopted the rule that if the employee cannot get at least 5 hours' sleep during the scheduled period, the entire time is working time.
(3) Employees residing on employer's premises or working at home.-An employee who resides on his employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is of course difficult to determine the exact hours worked under these circumstances, and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his employer and also to a telephone operator who has the switchboard in her own home.25
(f) Preparatory and concluding activities.In November 1947 the Administrator issued the Portal-to-Portal Bulletin. In dealing with this subject, the Bulletin, 29 C. F. R. 790.8 (b) and (c), said:
(b) The term “principal activities” includes all activities which are an integral part of a principal activity. Two examples of what is meant by an integral part of a principal activity are found in the report of the Judiciary Committee of the Senate on the portal-to-portal bill. They are the following:
(1) In connection with the operation of a lathe, an employee will frequently, at the commencement of his workday, oil, grease,
21 Conuell v. Central Missouri Telephone Co., 170 F. 2d 641 (C. A. 8); Strand v. Garden Valley Telephone Co., 51 F. Supp. 898 (D. Minn.) ; Whitsitt v. Enid Ice & Fuel Co., 2 W. H. Cases 584 ; 6 Labor Cases, par, 61226 (W. D. Okla.).
22 Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked, General Electric Co. v. Porter, 208 F. 2d 805 (C. A. 9), certiorari denied 347 U, S. 975.
23 Armour v. Wantock, 323 U. S. 126; Skidmore v, Swift, 323 U. S. 134 ; Bouers v. Remington Rand, 64 F. Supp. 620 (S. D. III.), affirmed 159 F. 2d 114 (C. A. 7), certiorari denied 330 U. S. 843; Bell v. Porter, 159 F. 2d 117 (C. A. 7), certi. orari granted 330 U. S. 817, grant of certiorari vacated and certiorari denied, 330 U. S. 813, rehearing denied 331 U. S. 864; Rokey v. Day & Zimmerman, 157 F. 2d 736 (C. A. 8); Bridgeman v. Ford, Bacon & Davis, 161 F. 2d 962 (C. A. 8); McLaughlin v. Todd & Brown, Inc., 7 W. H, Cases 1014; 15 Labor Cases, par. 64606 (N. D. Ind.); See also: Campbell v. Jones & Laughlin, 70 F. Supp. 996 (W. D. Pa.). (If sleeping period is of more than 8 hours, only 8 hours will be credited.)
24 See Eustice v. Federal Cartridge Corp., 66 F. Supp. 55 (D. Minn.).
23 Skelly Oil Co. v. Jackson, 194 Okla. 183, 148 P. 2d 182 (Okla. Sup. Ct. 1944); Thompson v. Loring Oil Co., 50 F. Supp. 213 (W. D. La.); Munn v. Southwestern States Telephone Co., 52 F. Supp. 663 (N. D. Tex.).
or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.
(2) In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee.
Such preparatory activities, which the Administrator has always regarded as work and as compensable under the Fair Labor Standards Act, remain so under the Portal Act, regardless of contrary custom or contract.
(c) Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer's premises at the beginning and end of the workday would be an integral part of the employee's principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a "preliminary” or “postliminary” activity rather than a principal part of the activity. However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity
or activities. These principles have guided the Administrator in the enforcement of the act. Their application has been challenged in two cases which are now pending before the Supreme Court of the United States. In one case employees changed their clothes and took showers in a battery plant where the manufacturing process involved the extensive use of caustic and
toxic materials which made the changing of clothes and showering indispensable. The United States Court of Appeals for the Sixth Circuit upheld the view expressed in the Portalto-Portal Bulletin that these activities were an integral part of the employee's principal job and that they were not activities which were excluded by the Portal-to-Portal Act.26
In another case the Court of Appeals for the Ninth Circuit held that the sharpening of knives by knifemen in a meatpacking plant before and after the scheduled workday was a preliminary and postliminary activity and was not to be considered time worked under the statute.27 If the Supreme Court should decide these cases contrary to these views, the Administrator will make and publish whatever revision may be required under the circumstances.
Section 3 (o) of the act provides an exception to the general rule for employees under collective-bargaining agreements. This section provides for the exclusion of time spent in changing clothes or washing at the beginning or end of the workday, if the time is excluded by the express terms of or by a custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.
(g) Adjusting grievances.-Time spent in adjusting grievances between an employer and employees during the time the employees are required to be on the prmises is hours worked, but in the event a bona fide union is involved the counting of such time will, as a matter of enforcement policy, be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement.
(h) Lectures, meetings, and training programs.-Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are met: (1) Attendance is outside of the employee's regular working hours; (2) attendance is in fact voluntary; (3) the course, lecture, or meeting is not directly related to the employee's job; and (4) the employee does not perform any productive work during such attendance.
23 Steiner v. Mitchell, 215 F. 20 171 (C. A. 6).
27 Cf Mitchell v. King Packing Co. 216 F. 2d 618 (C. A. 9), contra.
Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.
The training is directly related to the employee's job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job. For example, a stenographer who is given a course in stenography is engaged in an activity to make her a better stenographer. Time spent in such a course given by the employer or under his auspices is hours worked. However, if the stenographer takes a course in bookkeeping, it may not be directly related to her job. Thus, the time she spends voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time.
Of course, if an employee on his own initiative attends an independent school, college, or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job.
There are some special situations where the time spent in attending lectures, training sessions, and courses of instruction is not regarded as hours worked. For example, an employer may establish for the benefit of his employees a program of instruction which corresponds to courses offered by independent bona fide institutions of learning. Voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer.
As an enforcement policy, time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met: (1) the apprentice is employed under a written apprenticeship agreement or program which substantially meets the fundamental standards of the Bureau of Apprenticeship, U.S. Department of Labor; (2) such time does not involve productive work or performance of the apprentice's regular duties. If the above
criteria are met the time spent in such related supplemental training shall not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.
(i) Medical attention.-Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when he is working constitutes hours worked.
(j) Civic and charitable work.—Time spent in work for public or charitable purposes at the employer's request, or under his direction or control, or while the employee is required to be on the premises, is working time. However, time spent voluntarily in such activities outside of the employee's normal working hours is not hours worked.
(k) Suggestion systems.-Generally, time spent by employees outside of their regular working hours in developing suggestions under a general suggestion system is not working time, but if employees are permitted to work on suggestions during regular working hours the time spent must be counted as hours worked. Where an employee is assigned to work on the development of a suggestion, the time is considered hours worked.
(1) Traveltime.—The principles which apply in determining whether or not time spent in travel is working time depend upon the kind of travel involved. The subject is discussed under the headings “Travel from home to work,” “Travel that is all in the day's work,” and "Travel away from home.” At the outset a brief reference must be made to the Portal Act as it applies to traveltime.
The Portal Act provides in section 4 (a) that except as provided in subsection (b) no employer shall be liable for the failure to pay
the minimum wage or overtime compensation for time spent in “walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform either prior to the time on any particular work day at which such employee commences, or subsequent to the
time on any particular workday at which he ceases, such principal activity or activities.”
Subsection (b) provides that the employer shall not be relieved from liability if the activity is compensable by express contract or by custom or practice not inconsistent with an express contract.
Thus traveltime at the commencement or cessation of the workday which was originally considered as working time under the Fair Labor Standards Act (such as underground travel in mines, or walking from time clock to workbench) 28 need not be counted as working time unless it is compensable by contract, custom or practice. If compensable by express contract or by custom or practice not inconsistent with an express contract, such traveltime must be counted in computing hours worked. However, ordinary travel from home to work (see (1) below) need not be counted as hours worked even if the employer agrees to pay for it.
(1) Travel from home to work.—An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites.
While normal travel from home to work is not worktime, if an employee receives an emergency call outside of his regular working hours and is required to travel to his regular place of business or some other work site, all of the time spent in such travel is working time.
A problem arises when an employee who regularly works at a fixed location in one city is given a special 1-day work assignment in another city. For example, an employee who works in Washington, D. C., with regular working hours from 9 a. m. to 5 p. m., may be given a special assignment in New York City, with instructions to leave Washington at 8 a. m. He arrives in New York at 12 noon, ready for work. The special assignment is completed at 3 p. m., and the employee arrives back in Wash
ington at 7 p. m. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer's benefit and at his special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the “principal” activity which the employee was hired to perform on the workday in question; it is like travel involved in an irregular emergency call (described above), or like travel that is all in the day's work (see (2) below). All the time involved, however, need not be counted. Since, except for the special assignment, the employee would have had to report to his regular work site, the travel between his home and the railroad depot may be deducted, it being in the "home-to-work” category. Also, of course, the usual mealtime would be deductible.
(2) Travel that is all in the day's work.Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work and must be counted as hours worked regardless of contract, custom, or practice.29 If an employee normally finishes his work on the premises at 5 p. m. and is sent to another job which he finishes at 8 p. m, and is required to return to his employer's premises arriving at 9 p. m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p. m. is home-to-work travel and is not hours worked.
(3) Travel away from home.—Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also
3 Tennessee Coal, Iron & RR. (0. v. M118coda Local, 321 U. S. 590 ; Anderson v. Mt. Clemens Pottery Co., 328 U. S. 680 ; Walling v. Anaconda Copper Mining Co., 66 F. Supp. 913 (D. Mont.).
29 Walling v. Mid-Continent Pipe Line Co., 143 F. 2d 308 (C. A. 10).