When Do You Need to Pay an Employee for Not Working?

Employees get paid when they work. Everyone who works for a living knows that. But as an employer, you probably know that some employees are also entitled to pay when they are not working.

Depending on the nature of your business and the types of work done at your company, some of your employees may be entitled to compensation for traveling for business, being on call, and sometimes even sleeping (if they are shift workers on a long shift). Below, we review some instances where Texas employment law might require you to pay your workers for not working.

Sleep Time

When employees must be at work for 24 hours at a time (e.g., caregivers, security guards), you may be required to pay them for the time they are asleep. Your employee’s sleep time may or may not be considered hours worked. If an employee can get at least five hours of uninterrupted sleep, the sleep time is not considered hours worked. You can only exclude the actual number of hours spent sleeping, up to eight hours, from the employee’s hours worked, provided all the following apply:

  • Your employee can usually get at least five consecutive hours of sleep.
  • The employee is on duty for at least 24 hours.
  • Adequate sleeping facilities are provided.
  • You and your employee have an agreement, express or implied, to exclude up to eight hours of sleep time.

Even if your employee sleeps more than eight hours, you can deduct no more than eight hours. Any interruptions of your employee’s sleep must be counted as hours worked. If there is no agreement in place to exclude sleep time, it must be included in paid time.

On-Call Time

On-call pay is compensation for hours when non-exempt employees are “engaged to wait.” This means that the employees’ movement is limited while they wait for work to start.

Non-exempt employees who are on-call are paid at their regular rate unless they work or wait to work more than 40 hours a week. When that happens, on-call pay should be paid at the overtime rate, according to the Fair Labor Standards Act (FLSA).

Employees who are on call may have restrictions. For example, they may have to remain within a certain distance of the job location. They may be prohibited from drinking alcohol or working for other employers during the waiting time.

On-call pay is not necessary when employees are waiting to engage rather than engaged to wait. If an employee is on-call at home while attending to personal matters or out and about running errands, the employer has not restricted the employees’ physical movement or use of time, so the hours spent waiting for work do not have to be compensated.

The determination of what constitutes on-call time can be a tricky one and it is best to consult with your legal counsel regarding the subject.


Payment for training and education on behalf of the employer is governed by the FLSA.  Training time does not have to be paid only if all four of the following conditions are met: (1) it is outside normal hours, (2) it is voluntary, (3) is is not job related, and (4) no other work is performed concurrently.  As you can see, it will be the rare instance that training time is not compensable.

In addition, some states may have further requirements.

Travel Time

In some cases, you may be required to pay an employee for travel time if they are required to commute to a different job location. This applies in situations where you require an employee to go out on calls or to various job locations during the workday. Also, if you require an employee to take employer-sponsored transportation to a specific location, you may be required to pay for this travel time.


Surprisingly, most states do not have requirements for breaks and lunch periods. There are 20 states that do, and the laws vary. Typically, if an employee works at least six hours in these states, they are entitled to a lunch period of at least 30 minutes.

In Texas, employees are not entitled to a lunch or rest break under state or federal law. However, many employers do provide lunch breaks to their employees as a benefit.  You should understand, though, that to the extent you do provide breaks, compensability for such breaks will be determined by relevant law.

Contact Our Frisco Employment Law Attorneys Today

 Even when your employees are not working, you may still need to pay them in certain cases. Make sure you are aware of the laws so you can avoid wage-related lawsuits from disgruntled employees.

If you need help determining if you are paying your employees appropriately for times they are not working, or with any other employment or business law matter, the Frisco employment lawyers at Simon | Paschal PLLC can help. To schedule a consultation, call (972) 893-9340 or contact us online.

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