Off-the-Clock Time: The Drive, the Phone and the Load-Out

Why this matters

Almost every wage claim against a field-service shop is built out of small unpaid pieces of the day rather than an unpaid paycheque. The load-out. The parts run. The evening phone call. Twenty minutes a day is nothing to an owner and it is the entire case, because the number in the demand letter is that twenty minutes times every tech and every working day inside the lookback. This article is about which pieces are compensable and what moves each one, because most owners have been told there is a risk but never that there is a rule.

Orientation, not legal advice about your shop. The layer matters throughout: what follows is the federal floor, and several states are more generous on every item.

Where the workday starts, and the one fact that moves it

Ordinary travel from home to work is not compensable. That is the Portal-to-Portal Act at 29 U.S.C. 254(a), and it also excludes activities that are merely preliminary or postliminary to the principal activities of the job.

The exception swallows more than owners expect. An activity that is integral and indispensable to the principal activities is itself a principal activity and starts the day: it qualifies when it is an intrinsic element of the work and one the employee cannot dispense with in order to perform it (Integrity Staffing Solutions v. Busk, 574 U.S. 27 (2014)). IBP v. Alvarez, 546 U.S. 21 (2005) settled what follows - once the first principal activity happens the continuous workday has begun, and time inside it is compensable (29 CFR 790.6) except for bona fide meal periods.

So the question for a service shop is never "is the drive paid." It is: did the shop require work before the drive?

• Tech drives from home straight to the first call in a take-home van that was loaded yesterday: ordinary commuting, not compensable. The Employee Commuting Flexibility Act of 1996 amended 29 U.S.C. 254(a) to say that using an employer vehicle under an agreement between employer and employee does not change that - on two conditions. The travel has to be within the normal commuting area for the employer's business, so a tech sent ninety miles out is outside it. And activity during the drive has to be incidental to the use of the vehicle, so a tech taking dispatch calls from the driver's seat is working, agreement or no agreement.
• Tech is required to report to the shop at seven, load the van, take the morning assignments, then drive: the workday began at seven with the loading, and the drive to the first call is inside it.
• Tech is required to stop at the supply house on the way in to collect a part for the first job: the collection is work. The travel from home to the supply house is generally still commuting; from there onward is inside the workday.
• Tech chooses to swing by the shop for coffee and a chat: nothing has started.

The distinction is the requirement, not the location and not the uniform. A shop that tells techs "come by if you need stock" and one that tells them "be here at seven" have bought two different pay obligations with the same sentence structure.

The drive between jobs

Not in dispute anywhere, and routinely unpaid anyway. Travel from one job site to another during the working day is work time, flatly, under 29 CFR 785.38. There is no integral-and-indispensable analysis to run and no exception for a tech who stops for lunch.

The way shops create this violation is by paying per call, or from arrival to departure at each site, so the forty minutes between the second and third calls appears nowhere. That pay design is the violation; no amount of tech honesty cures it, because the timesheet has no field for the gap.

The after-hours call, and how narrow de minimis really is

A phone call about work is work. The doctrine owners have half-heard of is at 29 CFR 785.47: insubstantial or insignificant periods of time beyond the scheduled hours which cannot as a practical matter be precisely recorded may be disregarded. Read the conditional. It was written for time that is genuinely unrecordable, and a mobile phone logs a start time and a duration by construction.

Two more things narrow it. The doctrine looks at the aggregate and the regularity, not the single instance, so six four-minute calls in an evening is twenty-four minutes of a recurring pattern, not a trivial interruption. And the layer matters: the California Supreme Court held in Troester v. Starbucks Corp. (2018) that the federal de minimis rule does not apply to regularly occurring small increments of work under California wage law, so a shop operating there cannot run this argument on anything regular. The court did reserve whether de minimis might still reach work so irregular or brief that recording it is unreasonable, a narrower door than the one shops try to walk through.

On call: engaged to wait, or waiting to be engaged

The framing goes back to Armour & Co. v. Wantock and Skidmore v. Swift & Co., both 1944, and survives at 29 CFR 785.17: an employee required to stay on the premises, or so close that the time cannot be used effectively for their own purposes, is working while on call. One who only has to carry a phone and stay reachable is not.

Between those sits every real on-call rotation, and the facts that move it are concrete:

• Required response time. Fifteen minutes to be rolling is restrictive; two hours is not.
• Geographic restriction. A radius the tech must stay inside is the strongest single factor.
• Call frequency. One call a week is different from being woken four times a night, even at identical terms.
• Whether the shift can be traded. A rotation the tech can swap out of is materially less restrictive.
• Other restrictions. No alcohol, stay in the van, keep the uniform on.

Time spent actually responding to a call is working time regardless of how the waiting is classified, and it is what a shop should be recording even where it has concluded the standby hours are not.

The paperwork done at home

Work the employer suffers or permits is work time (29 CFR 785.11). It need not be requested or authorised. If the tech writes up yesterday's service tickets at the kitchen table, that is compensable where the shop knew or had reason to know.

"Had reason to know" is the part that decides these. A shop with tickets time-stamped at 21:40 in its own software has reason to know. A shop whose techs cannot physically close the day's work inside the paid day has reason to know arithmetically, whether or not anybody said so.

Worked: fifty minutes a morning, priced over a lookback

Four techs. The shop requires everyone at the yard at 07:00 to load the van and take assignments. Vans roll at 07:25. The first job is reached at 07:50. Payroll runs from 07:50.

The loading at 07:00 is integral and indispensable, so the workday starts there, and the 07:25 to 07:50 drive is inside the continuous workday. Unpaid time per tech per day is 07:00 to 07:50, fifty minutes.

• Per week: 50 minutes times 5 days is 250 minutes, which is 4.1667 hours.
• These techs are already scheduled and paid for 40 hours, so every one of those hours is over 40 and owed at time and a half: 4.1667 times 1.5 is 6.25 hours of pay per tech per week.
• Across 4 techs: 6.25 times 4 is 25 hours of pay a week.
• Over the FLSA's ordinary two-year lookback (29 U.S.C. 255(a); three years if willful), 104 weeks: 25 times 104 is 2,600 hours of pay. Liquidated damages under 29 U.S.C. 216(b) are an equal additional amount, so 5,200 hours, plus the attorney fees the statute awards a prevailing employee.
• Divided across the four techs that is 1,300 hours each, roughly 32 forty-hour weeks of one tech's pay, for each of the four.

The habit is fifty minutes. The exposure is thirty-two weeks per tech, and the only thing between the two is multiplication.

What changes the answer. Give the techs take-home vans loaded the night before and let them drive straight to the first call under a written vehicle agreement, and those fifty minutes stop being compensable under federal law, because nothing required before the drive is left. Same shop, same trucks, same arrival time, and the federal obligation is gone - not because anything was concealed but because the workday genuinely starts later.

But that escape is federal only. The Employee Commuting Flexibility Act amends the Portal-to-Portal Act, so it buys nothing in a state that measures hours worked by employer control instead. California does (Morillion v. Royal Packing, 2000), and there a take-home van can still be compensable where the programme is mandatory or carries real restrictions: no passengers, no personal errands, tools stay aboard, the phone answered en route. Hernandez v. Pacific Bell (2018) found such a commute non-compensable precisely because the programme was optional and lightly restricted. Optional and unrestricted survives a control test; required and policed does not. So the decision is worth making deliberately: either start the clock at seven and pay it, or stop requiring seven - and in a control-test state, mean it about the van.

And the state layer changes the size. The federal lookback is two years, three if willful. New York's wage law runs six and California's three, or four where the same unpaid wages are pleaded through the unfair competition statute at Business and Professions Code 17200. A shop running the federal arithmetic in either state understates the window by a factor of two or three before anything else is argued.

If that morning is your morning - a required yard time, an unpaid drive, a few techs and a couple of years of it - stop before you fix it: the fix is the dated part. Moving the time clock or rewriting the van policy next Monday brackets the period behind it as cleanly as an admission. Take one month of dispatch and GPS timestamps, the payroll register for the same month, the vehicle agreement if any, and the written policy, to an employment lawyer first.

Why a rule against it does not fix it

Shops reach for a policy: no work off the clock, no calls after hours, all time must be recorded. Useful, not sufficient, and the regulation says so in as many words. Under 29 CFR 785.13 it is management's duty to exercise its control and see that work is not performed if it does not want it performed; the mere promulgation of a rule against such work is not enough.

So the policy has to be backed by one of two things, and which one you pick is a real choice.

Make the time recordable and pay it. The time entry starts at the yard, not at the first call. The phone log is reviewed monthly and after-hours calls paid to the minute. The ticket-writing is done on paid time, which usually means the last stop ends earlier than it used to.

Or remove the requirement that creates the time. Take-home vans with a written agreement, and a genuinely optional one in a control-test state. Tickets closed in the field before leaving the site. A dispatcher who handles the after-hours line so techs are not fielding it. An on-call rotation written so it is genuinely unrestricted, with a response window that matches.

The failure mode is picking neither: a written policy, an unchanged operation, and techs who quietly absorb the difference because they want the job. That shop has the policy as an exhibit proving it knew, an operation proving the work happened, and no records to argue the number with - the position the wage-audit card calls the worst available.

References

• Portal-to-Portal Act, 29 U.S.C. 254(a), as amended by the Employee Commuting Flexibility Act of 1996; limitations period 29 U.S.C. 255(a); liquidated damages 29 U.S.C. 216(b); California Business and Professions Code 17200 (four-year reach on the same unpaid wages)
• 29 CFR 785.11, 785.13, 785.17, 785.38, 785.47 and 790.6 (hours worked, on-call, travel, de minimis, continuous workday)
• IBP, Inc. v. Alvarez, 546 U.S. 21 (2005); Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27 (2014); Armour & Co. v. Wantock and Skidmore v. Swift & Co., both 323 U.S. (1944); Troester v. Starbucks Corp. (Cal. 2018); Morillion v. Royal Packing Co. (Cal. 2000) and Hernandez v. Pacific Bell Telephone Co. (Cal. Ct. App. 2018), on the control test and the take-home van
• See related: FLSA Overtime Rules for Trade Businesses; The Wage and Hour Audit and What Triggers One; Meal and Rest Breaks: Where the State Writes the Rule