Is waiting time working time?

According to a well-known expert in labor law, Azucena (2013), whether waiting time constitutes working time depends on the circumstances of each particular case and is a question of fact to be resolved by appropriate findings of the labor court. Therefore, pieces of evidence should be introduced by the parties and considered by the court in arriving at a decision on this matter.

The conclusion is highly dependent on the facts and it must be determined in accordance with common sense and the general concept of work or employment. According to the United States Supreme Court, courts called upon to determine whether time spent waiting constitutes compensable time must scrutinize and construe the agreement between the particular parties, the practical construction of the working agreement, the nature of the service, its relation to the time spent waiting, and all of the surrounding circumstances.

The facts may show that the employee was engaged to wait or was waiting to be engaged. The controlling factor is whether waiting time spent in idleness is predominantly for the employer’s benefit. If so, such waiting time is compensable.

Azucena (2013) gave the following example. [T]he mere fact that a large part of the time of the employees engaged in a stand-by capacity in the employer’s auxiliary fire-fighting service was spent in idleness or in playing cards and other amusement, the facilities for which were provided by the employer, did not render inapplicable the overtime provisions of our labor laws.

The most important factors in rendering on-call time non-compensable appear to be: [1] the ability of employees to trade on-call shifts; [2] the ability of employees freely to move about geographically when a cellphone or pager is used as the method of contact; [3] the relative frequency of calls that necessitate a response from the on-call employee; and [3] whether or not the employee was, in fact, able to engage in personal activities.

Similarly, 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. This means that waiting is an integral part of the job.

The question, therefore, should be this: is the waiting done for the benefit of the employer? Also, while waiting, is the employee required to manage or take care of the employer's property?On the other hand, Azucena (2013) continues to give an example, if the truck driver is sent from one city to another, leaving at six in the morning and arriving at 12 noon, and is completely and specifically relieved from all duty until six in the evening, when he again goes on duty for the return trip, the idle time is not working time. He is waiting to be engaged.

The question to be asked is: can the employee spend his idle time completely and freely for his own benefit? Does the employer benefit directly from such idle time because of some duty or function imposed on the waiting employee? In fact, under the implementing rules of the Labor Code of the Philippines, an employee need not leave the premises of the work place in order that his rest period shall not be counted, it being enough that he stops working, may rest completely and may leave his work place, to go elsewhere, whether within or outside the premises of his work place.

Waiting time spent by an employee shall be considered as working time if waiting is considered an integral part of his work or if the employee is required or engaged by an employer to wait. Thus, four hours spent by an employee waiting for the start of his work time due to the unique scheduling of the school system may be considered an integral part of the work of the employee. Hence, his waiting time is considered compensable work time.

The discussion above is based on an outline by Azucena (2013). His books are available in fine bookstores nationwide. SOURCE: Azucena, C. A. (2013). The Labor Code: with Comments and Cases (Vol. 1). National Book Store.