A Tennessee car wash found out the hard way that “waiting time”—time employees spend between tasks—is paid working time. Employees of the Shur-Brite car wash in Nashville sued claiming that the car wash would clock the workers in and out multiple times a day—clocking them in when a car pulled in to be washed, clocking them out when there were no cars around.
An advocate for low-wage earners went undercover at Shur-Brite and was clocked out more than 10 times during a single eight-hour shift. The result—he was paid for only four of the eight hours. The case settled for $130,000.00.
Shur-Brite’s practice clearly violated the federal regulations requiring that employees who are forced to remain “on call” at or near the employer’s premises must be paid as working. That’s an obvious and intuitive policy for most people: after all, work does include slack or down time. But, if an employee has to be onsite and may have to spring into action at a moment’s notice, that’s “working” by both a common sense definition and the FLSA.
One of the car wash’s owners unsuccessfully argued that the situation fell under an FLSA exception made for employees legitimately free from work or the expectation of work. In that case, the employees would have to have been “completely relieved from duty” for “long enough to enable him [or her] to use the time effectively for his [or her] own purposes.” This was not the case here.
Someone who washes cars has to be there when the cars need to be washed. The employee can’t just “leave word” of “where he [or she] may be reached.” Moreover, the regulation defining off-duty time says that to be considered off duty, a worker must be “definitively told in advance that he . . . will not have to commence work until a definitely specified hour,” which is the antithesis of grabbing soap and a rag whenever a car pulls up.
The take-away is that if employees are at work, waiting for work to come to them, they are likely working and need to be paid. Just because a job may have an uneven work flow does not mean that slow stretches are not work time that must be accounted for, and paid for.