A Tucson car wash explored just that scenario, and found out the hard way that employers may have to pay for time that employees spend waiting to do work. According to reports, the car wash was requiring its employees to clock out during downtime, but still required that they stay at the workplace just in case business picked up. This mistake proved very costly to the business—to the tune of more than $300,000 in back wages to its employees. You can read the article here.
So what's the rule on downtime? As usual, we look to the Fair Labor Standards Act ("FLSA").
The FLSA governs many of our concepts concerning compensable work hours—or the work time that an employee must be paid for. Determining if downtime constitutes hours worked under the FLSA depends upon whether the employee was being engaged to wait (which is work time) or the employee was waiting to be engaged (which is not work time). So, using our fast food restaurant as an example, if an employee is tending the counter while waiting for customers, that employee is being "engaged to wait" and is therefore entitled to pay for the hours spent doing nothing.
As the US Department of Labor's Jesus Olivares said in the car wash matter, "The message here is the employees have to get paid for wait time even if there are no cars to be attended. If the employer is still controlling their time, employees should be paid."
If you are concerned about your company's wage practices, or believe that you have missed out on earned wages, please feel free to contact me at 602-343-1492.