What time worked is paid time?

We are a trucking company. We pay our drivers per load. At some well sites the driver cannot unload due to various reasons, so we pay a detention rate starting after the first 2 hours and cap it at 10 hours. If the driver has to stay past those hours are we legally obligated to pay them for those hours over 10?

Asked on September 16, 2011 under Employment Labor Law, Texas


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Yes, you would have to pay for those hours. Whenever an employee is doing something at the employer's request or instruction or as required by the job, he or she is working--even if the "work" consists of sitting around. It's different when an employee is merely "on call"--e.g. told to keep the cell phone or beeper handy, and to come in if called. In that case, until and unless called in, the employee is free to do what he or she wants, so until called, the employee is not working. But if the employee is at a work or customer site and cannot leave it, then that would be considered work and the employee must be paid. Note the matter is different if the  "employees" are not employees at all, but rather independent contractors--then you pay them per whatever agreement you and then come to or have. Be careful though: whether a worker is employee or independent contractor depends on the nature of their duties and relationship with the employer, not what you call them; if you misclassify an employee as an independent contractor, you can expose yourself to liability. The  Dept. of Labor has guidelines for claissifcation on their website.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.