by Sania Chandrani*
As jurisdictions decide how to properly compensate rideshare app drivers on platforms like Uber and Lyft, they consider whether these workers are properly categorized as independent contractors or employees. With the designation of “employee” comes the protections of the Fair Labor Standards Act (“FLSA”)—minimum wage and hour regulations. Of their obligations as would-be employers, platforms contend that paying employees for time spent waiting to pick up a rider is untenable for their business model. This Contribution suggests that as states develop regulations that qualify drivers for some employee protections, courts will apply the same balancing test they do for employees when determining whether drivers’ wait time is compensable. After analyzing the prominent factors considered by courts, this Contribution argues that platforms exaggerate their concerns. Because only parts of drivers’ “idling time” would be compensable per the FLSA, regulations bringing drivers closer to employee status would not trigger a windfall for plaintiffs, but rather fairly compensate workers for time spent waiting for passengers using rideshare platforms.
Rideshare and delivery apps classify their workers as independent contractors rather than employees to avoid (i) permitting collective action and (ii) paying minimum wage, overtime, and insurance. Labor organizers push back, classifying these drivers and delivery workers as employees, because along with that designation come the benefits and protections of employment status.1
In response to labor, Uber, Lyft, and their delivery counterparts catastrophize that if their workers were classified as nonexempt employees, the employing apps would be required to pay drivers for their “wait time” or “on call time”—that is, any time spent logged into an app prior to even being connected to pick up a rider.2 This, platforms say, would be untenable and would cause their business model to break down.3
To assuage platforms while providing drivers with additional protections, several jurisdictions have created categories for workers between employees and independent contractors. These categories include some of the benefits and costs of each classification. With these new classifications come new legal questions, and this Contribution addresses the “Idling Dilemma”: What portion of the time spent on-app at the disposal of the employer while not actively driving a rider is compensable?4
The Fair Labor Standards Act and subsequent caselaw provide a framework to answer that question. Whether an employee in the gig economy is entitled to compensation for time spent “on-call” requires determining whether that employee is “engaged to wait,” and therefore compensated, or “waiting to be engaged” and therefore uncompensated.5
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Whether and how much an employer must compensate employees is determined by the Fair Labor Standards Act, 29 U.S.C.A. §§ 206, 207 (“FLSA”). For this analysis, assume that the platform companies are employers, and the workers are employees who fall within the scope of the FLSA.6 Employers must compensate employees for time worked, but FLSA was ambiguous as to how employers should calculate work time. The Portal-to-Portal Act of 1947 clarified the primary test: On-call time is compensable if the time cannot be effectively used for the employee’s personal purposes.7
For background, on-call employees may be physically away from the workplace but remain connected to it by telephone, for example, and must respond if the employer calls.8 While on-call, an employee does not face the typical constraints of being at work and may use their time for leisure activities.9 Despite this relative freedom, the employee’s personal activities may still be interrupted at any moment, and this shadow of the interruption may prevent the employee from engaging in activities disabling them from returning to work quickly enough.10
During on-call time, an employee will spend time waiting, not participating in active labor for the employer. The Wage and Hour Administrator states that working time is “not limited to the hours spent in active productive labor, but includes time given by the employee to the employer even though part of the time may be spent in idleness.”11 In Armour & Co. v. Wantock, the Supreme Court held that time spent waiting for work could be classified as working time per the FLSA.12 In both Armour and Skidmore v. Swift & Co., the Supreme Court indicated that whether waiting time was compensable was determined by whether “time is spent predominantly for the employer’s benefit or for the employee’s.”13 The Court elaborated that there is no “legal formula” to resolve whether an employee is working, and that waiting time can be working time depending on a fact-specific inquiry.14
Implementing Skidmore, seven federal circuit courts have developed factors to determine whether partially leisure time within on-call time constitutes compensable waiting time.15 The inquiry centers around whether the on-call time is restricted such that it interferes with the effective use of the time for personal purposes.16
Common factors across the circuits include: (1) the working agreement between parties, (2) a requirement that the employee remain in a certain location or limit their movement, (3) sufficient time and permission for the employee to use wait time effectively for personal matters, (4) whether on-call responsibilities can be traded, (5) the frequency of calls, (6) the time limit for response to calls, (7) whether using a pager could ease restrictions, and (8) whether the time spent waiting is actually spent predominantly for the employer’s benefit or for the employee’s benefit.17 If the balancing weighs in favor of the employee, the time is compensable, but if the factors favor the employer, the time is not compensable. A significant burden created by one factor may outweigh others placing a slight burden.18
Some district courts have considered specifically whether app-based driver waiting time would be considered compensable on-call time if the drivers were employees. These cases indicate that the on-call framework is applicable in the app-based driver context and suggest which factors courts will consider.19 In light of that, the next section applies the aggregate list of all factors considered by federal circuit courts, as is done in the Ninth Circuit, and concludes that at least some of the time drivers spend waiting prior to accepting a ride is compensable.
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For context, take Uber as an example. A driver logs into the Uber app and selects “go online” to begin receiving rides. When a trip request comes in, the driver’s phone beeps, flashes, and lists the following information: the rider’s name, star rating, and pickup location; any surge fare in effect; time upon the rider’s request; and the estimated pickup time.20 The driver does not receive the rider’s destination until the ride starts.21 Uber may punish drivers for not accepting rides if their “acceptance rate” drops below Uber’s satisfaction or if their “cancellation rate” is too high.22
The threshold question is whether employee drivers are on-call and when. Once drivers are “online” they mirror a typical on-call employee who is physically away from the workplace but remains connected to it. Like on-call employees, drivers must be able to respond to the car at a moment’s notice, and while they can use this time for leisure activities, they could be interrupted at any time to respond to a rider, which limits their ability to engage in other activities. Therefore, drivers can be considered “on call.”
Thereafter, whether that time spent on-call is compensable is determined by evaluating the on-call factors. The primary principle in determining whether on-call time is compensable is whether an employee can effectively use the time for their own purposes.23 To make that determination, the Ninth Circuit applies a set of eight factors to its on-call time analysis which are a representative aggregation of the common factors considered by other circuits listed above.24 The following analysis considers each common factor in turn.
First is the agreement between the parties. However, the National Labor Relations Board, the agency which adjudicates many of these claims, has rejected the sufficiency of the employment contract in determining whether a driver is an independent contractor or an employee.25 And, since platforms have not yet inserted wait time clauses into their contracts that would favor or limit compensation, this factor is not yet applicable.
Second is geographic requirements and limitations on worker movement. An employee who must remain on the employer’s premises or a location controlled by the employer such that the employee cannot use the time effectively for their own purposes is working while on-call.26 Examples include hospital employees or firefighters who must remain in an on-call location where they can eat, sleep, read, but not exit the premises.27 Employees who can leave the employer’s premises, but must remain within a limited time or distance away from the facility and be accessible by phone may be considered working.28 Finally, if an employee can leave the employer’s premises while on call, courts ask whether the employee is able to use on-call time effectively to engage in personal activities.29
Applied here, drivers must be attached to their cars while online. Because rideshare platforms lack a physical workplace, drivers are analogous to employees who can leave the employer’s premise but must remain in specified locations or immediately accessible by phone. In such cases, the inquiry shifts to whether the driver can use “on-call” time effectively to engage in personal activities. The answer here is, typically, no: the driver’s movement and actions while “online” are significantly restricted by the employer. For example, Uber drivers have little way of knowing where demand is high at any given time or how many other drivers are online, so they cannot reliably predict where they will be called.30 In major transit hubs like train stations and airports, drivers must wait in a queue to be assigned a rider, so their movement is restricted.31 Additionally, workers’ movements and activities are limited to activities that can be completed in or around the car when “on-call.” A car is a confined space which limits the physical scope of one’s movements. While drivers are free to be in the area where they wish to pick up riders, because the location they travel to is out of their control and their proximity and timely response to a car is required, this factor would likely favor the employee driver.
Third is whether employee drivers have sufficient time and permission to use wait time for personal matters. Periods of waiting time that constitute working time are generally unpredictable, short, and do not allow the employee to use the time effectively for their own purposes.32 For example, a factory worker who talks to their co-workers while waiting for their machine to be repaired is working during their waiting time.33 For employees who are on-call, they may be able to use the on-call time to engage in personal activities, but if an employer interrupts the use of the personal time with frequent calls, the personal use of the time becomes ineffective.34 Thus, if an employee is unable to finish a meal or read a newspaper, the employee cannot use the time effectively for their own purposes.35
Uber does not restrict its drivers’ abilities to engage in personal activities while online.36 The activities drivers have listed they engage in while online include rides from private clients, sleeping, personal errands, smoking breaks, phone calls, and other delivery business.37 However, employees cannot conduct activities which require them to be away from their vehicles because of the short amount of time they have to accept a ride and pick up a rider. Thus, once online, a driver could not be in a sports stadium, at a concert, on a hike, or perhaps even at home or in the bathroom if parking is more than a moment away.
Employer-apps would note that employees have the freedom not to be online during such longer personal activities and can reject rides. These are strong points in favor of the employer, but their strength is curtailed by the practices of employer-apps which often assign drivers one ride after the next, penalize drivers for failing to accept or cancelling rides, and incentivize drivers to spend more time online accepting rides. Ultimately, while choosing when to be “on-call” is the employee’s decision, once they are on-call, their effective use of that time is minimal, so this factor slightly favors the employee driver.
Fourth is whether employees can trade on-call responsibilities. When employees can trade on-call responsibilities with one another to reduce their burden, they may more effectively use the on-call time for personal purposes.38 The fact that employees may exchange on-call shifts in advance of duty is immaterial; rather, courts weigh whether on-call responsibilities can be traded during the shift.39
Uber does not permit drivers to trade responsibilities with one another. Although they are allowed to not accept calls or cancel rides once accepted up to a threshold, because they may suffer consequences for not agreeing to take a ride, or because they cannot agree to swap riders with another driver on their own accord, this situation differs from that in Ingram, for example. In Ingram, police deputies were considered on-call but could swap shifts at-will to pursue personal activities.40 The court held this lessened the employer’s control of the on-call deputies and weighed in favor of the employer.41 While drivers are not compelled to be on-call at any given time, once they are assigned a ride, they must accept and complete it up to a threshold regardless of where the drop-off location is. They may not trade rides with other drivers, so this factor weighs in favor of the drivers.
Fifth is the frequency of calls. Frequent interruptions of the employee’s time by calls to report to duty prevent the employee from engaging in personal activities. In cases requiring return to the employer’s premises, three to five callbacks per twenty-four hours qualifies as a sufficient burden to warrant compensation for on-call time.42 Meanwhile, if an employee is called to work two or fewer times per twenty-four hours of on-call duty with each call lasting one to three hours (a maximum of six hours in a twenty-four hour period), courts have held the employee generally need not be compensated for inactive time.43
For Uber drivers, the frequency of calls depends on how busy the time or location is. Because this is somewhat predictable for drivers based on work or holiday hours or at airports for instance, drivers have some control over the frequency of their rides. And they can choose to go offline when they do not want to be on call, which favors the employer-app. But once they are “online,” they cannot reject more than three calls in a row; otherwise, they are logged out.44
Moreover, because apps assign riders one after the other to drivers, the frequency of calls during the time a driver is online can last hours. If a driver is near a transit hub at rush hour, the driver may not get more than a couple of minutes between rides. Drivers who are in lower demand areas have longer gaps between rides. To prevent this, Uber pushes drivers to locations that result in more frequent calls and faster response times, which reflects Uber’s interest in controlling how employees use their time and where they are located. And if drivers seek to game the app by idling in lower demand areas, Uber can continue to force log outs.
Sixth is the time limit for responses to calls. The quicker the required response time, the more likely that time is compensable. A short response time—like a requirement that the employee remain on the employer’s premises while on call—limits the activities the employee can pursue while on call.45 Courts have held that times under seven minutes are usually compensable while employees who have twenty or more minutes to respond are generally not.46
App-based drivers are automatically assigned riders and must confirm within fifteen seconds.47 If drivers do not accept, or repeatedly cancel, they risk their accounts being suspended or terminated if their cancellation rates exceed a certain threshold.48 This situation falls somewhere in between Ingram where employees could take up to forty-five minutes to report and Brigham v. Eugene Water & Electric Board where employees had to respond within moments.49 While Uber drivers can choose when to be on call, once they are online, they have about a minute to accept and begin driving. Thus, this factor favors the employee driver.
Seventh is whether pagers ease restrictions on employees. This pager factor developed in the years prior to cell phones; nowadays, every employer has a convenient and immediate means of reaching an on-call employee via cell phone. When such devices allow employees to pursue personal activities during their shifts, they are less burdened while on call.
This factor is mostly irrelevant for the app-based driving context where drivers can choose when they are on-call, and once they are, they are tethered to their phones to alert them of rides. Without the cell phone, this entire enterprise would be impossible, so cell phone notifications do not facilitate personal activities drivers would not do without the notification. With or without a notification, the driver must remain close to the car, ready to respond. Thus, cell phones, as used here, render this factor irrelevant for the app-based driver context.50
Eighth is the actual use of the time by the driver. If the driver constantly rejects rides, takes long breaks, never queues at the transit hubs, and does not accept rides in a frequent or timely manner despite the risk of deactivation, courts are likely to dismiss this claim as in the cases discussed above. However, as in Razak,51 if plaintiffs can demonstrate that the app’s requirements place a risk on their employment if they exercise much flexibility in their use of on-call time and the employer places restrictions on their use of on-call time for personal use, such as remaining in a queue, the driver may prevail.
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The above factors highlight a few policy considerations. First, pagers and employment agreements generally should not be considered. Whether a pager could ease restrictions should not be a factor in favor of employers any longer because all employees are tied to their work by their phones. Although phones offer employees a degree of flexibility, employers also benefit: Phones allow the employer to keep workers at their disposal without keeping them on their premises full-time, which would trigger automatic compensation.
And employment agreements should not be considered. Courts do not consider employment agreements in determining whether workers are employees or independent contractors because of the unequal bargaining power and the employer’s incentive and power to write whatever contract they prefer.52 The same principle applies.
Finally, the value an employer derives from the time an employee spends on-call should be considered.53 For employer-apps like Uber, more drivers mean lower prices for riders and more rider use—some excess capacity of drivers allows the app to function as intended. The network effect and rider use of the app is necessarily built on drivers logging in and being available to offer rides in a timely manner, which enhances the profitability of the apps. Thus, employer-apps benefit from drivers being online and ready even if they are not driving at every moment.
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Ultimately, evaluating the factors considered across circuit courts demonstrates that at least some of the time drivers spend online would be compensable. Because drivers must remain near their cars, do not know when and where rides end, are interrupted regularly by ride notifications, cannot trade rides, and must accept within seconds, a court would likely consider an appropriately plead case where an employee driver sought compensation for on-call/“online” time.
In existing caselaw, the actual use of “online” time plays a major role. If drivers are ignoring the app or are far from their car with no intention to drive while online, courts deem that time uncompensable.54 Yet, in another case, the court was uninterested in the on-premises living or location, pager, and time limit requirements.55 In that case, the court held that a reasonable factfinder could conclude that the hours a driver is “online” are compensable because the driver is (a) required to report they are on-call and must stay close to the assignment area (favors plaintiff), (b) should not be unavailable to receive orders (favors plaintiff), (c) receiving up to four hours of orders at the same time (favors plaintiff), (d) cannot trade orders (favors plaintiff), and (5) can sometimes rest and deliver for other companies (favors company).56
The most logical outcome is to compensate drivers for the time after they accept a ride and are en route to the rider at the wage rate—that time is compensable travel time per the Portal-to-Portal Act57 and the analysis above. Employer-apps seem most worried about the time drivers spend online before they receive a call. One solution is to pay drivers at a reduced rate based on their willingness to be in an app-prescribed location and their response rates. The more desirable the location and the higher the response rate, the higher the wage rate. And forced logouts for lack of response or movement could remove employer-apps’ concern for gaming behavior by workers. Ultimately, developing schemes that compensate rideshare drivers for the time spent “engaged to wait” using an analysis like other on-call workers promotes more consistency, predictability, and just compensation across the working class.
* Sania Chandrani is a J.D. Candidate (2024) at New York University School of Law. This Contribution was adapted from a final paper for the course Regulating Work Beyond Employment taught by Professors Cynthia Estlund and Mark Schneider.
1. Seth D. Harris & Alan B. Krueger, A Proposal for Modernizing Labor Laws for Twenty-First-Century Work: The “Independent Worker” 2 (Brookings Institute, 2015).
2. In opening statements of a class action lawsuit filed by an Uber driver, Ali Razak, plaintiff’s counsel alleged Uber’s practices precipitated other gig-economy companies to also avoid providing benefits to workers and paying relevant state taxes; meanwhile, Uber’s counsel argued that “they could engage in any personal pursuit” and had “total control” over their work hours. Transcript of Opening Statements at 53, 66, Razak v. Uber Technologies Inc., No. 2:15-cv-06121, 2024 U.S. Lexis _____ (E.D. Pa. Mar. 4, 2024).
3. Dara Khosrowshahi, I Am the C.E.O. of Uber. Gig Workers Deserve Better., N.Y. Times (Aug. 10, 2020), https://www.nytimes.com/2020/08/10/opinion/uber-ceo-dara-khosrowshahi-gig-workers-deserve-better.html.
4. Harris and Krueger argue that within these new categories, such as their “Independent Worker” model, driver wait time would be compensable, tapping into platforms’ concerns. In response, others like Ben Sachs argue that such “idling time” is not compensable, nullifying the platforms’ concerns. Compare Harris & Krueger, supra note 1, and Miriam A. Cherry & Antonio Aloisi, “Dependent Contractors” In the Gig Economy: A Comparative Approach, 66 Am. U. L. Rev. 635, 648–49 (2017), with Benjamin Sachs, Do We Need an “Independent Worker” Category? On Labor (Dec. 8, 2015), https://onlabor.org/do-we-need-an-independent-worker-category/.
5. Skidmore v. Swift & Co., 323 U.S. 134, 136–37 (1944).
6. Even if workers are not explicitly categorized as employees, and they fall under a new regulatory category, courts will likely fill gaps by applying their existing “wait time” analysis to these situations. See generally Castellanos v. Cal., 89 Cal. App. 5th 131 (Cal. Ct. App. March 13, 2023) (affirming the constitutionality of Proposition 22, the Protect App-Based Drivers and Services Act, Bus. & Prof. Code, §§ 7448–7467); see also Chris Lisinski, Unions Back Basic Benefits Bill for Uber, Lyft Drivers, WBUR State House News Service (Jan. 24, 2023), https://www.wbur.org/news/2023/01/24/uber-lyft-rideshare-legislation-unions (reporting that proponents of new legislation in Massachusetts, HD 2071 and SD 1161, sought to bypass the independent contractor versus employee classification battle, asserting that “even if drivers were legally declared contractors, they would still be owed the minimum wage, collective bargaining rights and other benefits in the bill”).
7. 29 C.F.R. § 785.15.
8. On-call service may require an employee to return to his employer’s premises, see, e.g., Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 673 (5th Cir. 1991) (en banc), or simply respond by telephone, see, e.g., Berry v. Cnty. of Sonoma, 30 F.3d 1174, 1178 (9th Cir. 1994).
9. Eric Phillips, Note, On-Call Time Under the Fair Labor Standards Act, 95 Mich. L. Rev. 2633, 2633 (1997).
10. Id.
11. 29 C.F.R. § 778.223 (2019).
12. 323 U.S. 126, 132–34 (1944) (“Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself . . . . That inactive duty may be duty nonetheless is not a new principle invented for application to this Act.”).
13. Id. at 133 (“Whether time is spent predominantly for the employer’s benefit or for the employee’s is a question dependent upon all the circumstances of the case.”); Skidmore v. Swift & Co., 323 U.S. 134, 138 (1944) (stating that whether hours are compensable depends “upon the degree to which the employee is free to engage in personal activities during periods of idleness when he is subject to call”).
14. Skidmore, 323 U.S. at 136–37.
15. Phillips, supra note 9, at 2639.
16. See, e.g., Razak v. Uber Techs., Inc., 2017 U.S. Dist. LEXIS 148087 at *21 (E.D. Pa. 2017) (“[O]n-call time is compensable if the employee is required to remain on the employer’s premises, or if the employee, although not required to remain on the employer’s premises, finds his time on call away from the employer’s premises is so restricted that it interferes with personal pursuits.”).
17. This list of common factors compiles holdings from various federal courts of appeals that have considered the wait time question and applied a subset of the above factors in evaluating the minimum wage and maximum hours legislation. 29 U.S.C.A. §§ 206, 207. See Birdwell v. City of Gadsden, 970 F.2d 802, 810 (11th Cir. 1992); Martin v. Ohio Turnpike Comm’n, 968 F.2d 606, 611 (6th Cir. 1992); Armitage v. City of Emporia, 982 F.2d 430, 432 (10th Cir. 1993); Dinges v. Sacred Heart St. Mary’s Hosps., 164 F.3d 1056 (7th Cir. 1999); Ingram v. Cnty. of Bucks, 144 F.3d 265, 268 (3d Cir. 1998); Allen v. Atlantic Richfield Co., 724 F.2d 1131, 1136–37 (5th Cir. 1984); Cross v. Arkansas Forestry Comm’n, 938 F.2d 912, 916–17 (8th Cir. 1991).
18. Defendant platforms may use Section 4 of the Portal-to-Portal Act as a shield from compensable wait time litigation. Section 4 states employers are exempt from paying minimum wages or overtime for activities that meet all of the following criteria: (1) “‘walking, riding, or traveling’ of the kind described in the statute, or other activities ‘preliminary’ or ‘postliminary’ to the ‘principal activity or activities’ which the employee is employed to perform”; and (2) activities which “take place before or after the performance of all the employee’s ‘principal activities’ in the workday”; and (3) activities which “are not compensable, during the portion of the day when they are engaged in, by virtue of any contract, custom, or practice of the kind described in the statute.” 29 C.F.R. § 790.4(b). Defendant platforms could argue that because commuting to work is not typically compensable and idle time occurs before or after conducting the principal activity of driving a rider, platforms are exempt from liability.
19. Some such cases have been dismissed for failing to plead sufficient facts to show waiting time was compensable. See Yucesoy v. Uber Techs., Inc., No. 15-CV-00262-EMC, 2016 U.S. Dist. LEXIS 15867, at *5–6 (N.D. Cal. Feb. 9, 2016) (stating plaintiffs must plead how often ride requests come in, how many drivers must accept, and risk of deactivation); O’Connor v. Uber Techs., Inc., 201 F. Supp. 3d 1110, 1125 (N.D. Cal. Aug. 18, 2016) (same); Bradshaw v. Uber Techs., Inc., No. CIV-16-388-R, 2017 U.S. Dist. LEXIS 86553, 2017 WL 2455151, at *23 (W.D. Okla. June 6, 2017) (finding that plaintiffs failed to plead facts that the time they sought payment for was compensable rather than waiting time).
20. Razak v. Uber Techs., Inc., 2017 U.S. Dist. LEXIS 148087 at *12 (E.D. Pa. 2017).
21. Id.
22. Id. at *14.
23. 29 C.F.R. § 785.17; see, e.g., Dinges v. Sacred Heart St. Mary’s Hosps., 164 F.3d 1056 (7th Cir. 1999) (emphasizing that the time to conduct leisurely activities must be “effective” for employers to avoid compensating employees).
24. For example, in Owens v. Loc. No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347 (9th Cir. 1992), the Ninth Circuit examined “(1) whether there was an on-premises living requirement; (2) whether there were excessive geographical restrictions on employee’s movements; (3) whether the frequency of calls was unduly restrictive; (4) whether a fixed time limit for response was unduly restrictive; (5) whether the on-call employee could easily trade on-call responsibilities; (6) whether use of a pager could ease restrictions; . . . (7) whether the employee had actually engaged in personal activities during call-in time;” and (8) the employment agreement. 971 F.2d at 351, 354 (internal citations omitted).
25. The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Loc. 798, IATSE, 372 N.L.R.B. No. 95, at 13 (2023), overruling SuperShuttle DFW, Inc., 367 N.L.R.B. No. 75 (2019) (holding that the process for determining whether a worker is an employee or an independent contractor is based on the common law multifactor analysis including whether there is a “significant entrepreneurial opportunity”).
26. U.S. Dep’t of Labor, Compliance Assistance Resources, FLSA Hours Worked Advisor, https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER80.asp.
27. Id.
28. Id.
29. Id.
30. Razak, 2017 U.S. Dist. LEXIS 148087, at *16.
31. Id.
32. 29 C.F.R. § 785.15.
33. Id.
34. U.S. Dep’t of Labor, Compliance Assistance Resources, FLSA Hours Worked Advisor, https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screenER82.asp.
35. Id.
36. Razak, 2017 U.S. Dist. LEXIS 148087, at *17.
37. Id.
38. See, e.g., Ingram v. Cnty. of Bucks, 144 F.3d 265, 268 (3d Cir. 1998).
39. Brigham v. Eugene Water Elec. Bd., 357 F.3d 931, 940 (9th Cir. 2004).
40. Ingram, 144 F.3d at 268.
41. Id. at 269.
42. Renfro v. City of Emporia, 948 F.2d 1529, 1537–38 (10th Cir. 1991).
43. See, e.g., Armitage v. City of Emporia, 982 F.2d 430, 432 (10th Cir. 1992) (denying compensation when there were fewer than two callbacks per week); St. Clair v. City of Iola, No. 92-4024, 1994 U.S. Dist. LEXIS 14116, at *10 (D. Kan. Aug. 26, 1994) (denying compensation for 1.15 interruptions per 24 hours); Cleary v. ADM Milling Co., 827 F. Supp. 472, 476 (N.D. Ill. 1993) (denying compensation for 1.25 calls per week); Burnison v. Mem’l Hosp., Inc., 820 F. Supp. 549, 552 (D. Kan. 1993) (denying compensation when there were 1.1 to 1.4 calls per 24 hours).
44. See Razak, 2017 U.S. Dist. LEXIS 148087, at *43.
45. Phillips, supra note 9, at 2641–42.
46. See Oliver v. Mercy Med. Ctr., Inc., 695 F.2d 379, 380 (9th Cir. 1982) (noting the district court’s unappealed ruling that on-call employees who had three minutes to return to work must be compensated for their on-call time). Likewise, constant attention to a radio weighs in favor of compensation. See Cross v. Ark. Forestry Comm’n, 938 F.2d 912, 917 (8th Cir. 1991) (holding that employees could prevail where they were permitted to go 35–50 miles from home but were required to monitor radio calls continuously); Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 677–78 (5th Cir. 1991) (en banc) (finding a twenty minute response time not burdensome); Brown v. United States, 31 Fed. Cl. 585, 588 (1994) (rejecting employer’s motion for summary judgment when employees were required to respond in five minutes or less).
47. Razak, 2017 U.S. Dist. LEXIS 148087, at *43.
48. Id. at *9.
49. 357 F.3d 931, 934 (9th Cir. 2004).
50. See, e.g., Razak, 2017 U.S. Dist. LEXIS 148087, at *42 (concluding the beeper factor in Ingram is not readily applicable to an entirely new, app-centered technology in the new “gig economy”).
51. Id. at *46.
52. See The Atlanta Opera, Inc. and Make-Up Artists and Hair Stylists Union, Loc. 798, IATSE, 372 N.L.R.B. No. 95, at 14 (2023) (“Indeed, if the day-to-day work of most individuals in the unit does not have an entrepreneurial dimension, the mere fact that their contract with the employer would permit activity that might be deemed entrepreneurial is not sufficient to deny them classification as statutory employees.”).
53. See Renfro v. City of Emporia, 948 F.2d 1529, 1538 (10th Cir. 1991) (giving weight to the benefit to the employer). But see Owens v. Loc. No. 169, Ass’n of W. Pulp & Paper Workers, 971 F.2d 347, 353–54 (9th Cir. 1992) (examining seven factors and finding the benefit to the employer irrelevant); Allen v. Atl. Richfield Co., 724 F.2d 1131, 1137 (5th Cir. 1984) (examining the benefit to the employer but giving it little weight).
54. See generally Razak v. Uber Techs., Inc., 2017 U.S. Dist. LEXIS 148087 (E.D. Pa. 2017).
55. Lawson v. Grubhub, Inc., No. 15-cv-5128, 2017 U.S. Dist. LEXIS 106291, at *8 (N.D. Cal. Jul. 10, 2017).
56. Id. at 8.
57. See IBP, Inc. v. Alvarez, 546 U.S. 21, 24 (2005) (per curiam) (holding that since donning and doffing protective gear was “integral and indispensable” to employees’ principal activity, walking to and from changing and work areas was also part of employees’ compensable work time).