Labor & Employment Law

Getting Paid For Waiting For Ice To Melt? Nice Work If You Can Get It

By Mark E. Tabakman, Esq.

In a recent case entitled Gonzalez v. Tanimura & Antle Inc., a federal court in Arizona ruled that farm workers who waited in their employer’s parking lot until the ice melted from the crops they were going to pick were “engaged to be waiting,” rather than “waiting to be engaged” and therefore entitled to compensation for the time they spent waiting.

The court ruled that the named plaintiff and fifty-five other should have been paid for the time they spent waiting in the parking lot. The fact that they could buy coffee, or play cards or even play soccer while they waited for the crops to de-ice did not turn the time into non-compensable time. The judge stated that these “personal activities” were more like time-filling activities, rather than personal pursuits that the workers would engage in if they had not gone to the parking lot to commence their work for the day.

The workers picked lettuce and broccoli. The majority of them lived in Mexico and walked about an hour to arrive at the parking lot. From that meeting place, they rode on company-provided buses to the fields, some 10-40 miles away. Every day during the harvest season (November-March), the workers were told when to report to the parking lot on the next day. If frost was predicted, the workers were told to report later, as the harvest could not commence until the ice melted. On occasion, ice was found on the crops after the workers got to the parking lot. Thus, they were unable to commence work and they stayed in the parking lot, although some bought coffee, or played cards, dice, or soccer. The plaintiffs alleged that they were required to wait for their employer’s convenience and benefit, turning their waiting time into compensable time.

The employer defended by contending that it did not owe any monies because the ice in the fields was an “act of God.” The court rejected this defense, concluding that “the ice actually was foreseeable because it happened quite often in Yuma during the winter months.” The court noted that the supervisors would set later start times for “the next morning based on their belief that ice would form” and that “because of the predictability of the ice, defendant could have set a later start time during the winter months.

This case raises the difficult and gray issue of what constitutes working time. Again, as in so many of these instances, it is the notion of employer compulsion or direction that is at the heart of the matter. The workers were directed to report by the employer at a certain time to a certain place. That conditions outside their (or anyone’s) control delayed the commencement of their “real” work did not render their waiting time non-compensable.

Engaged to be waiting to waiting to be engaged? It depends.
 

Full post as published by Wage & Hour - Development & Highlights on October 22, 2008 (boomark / email).