Restoration & disaster response
Storm & disaster recovery: standby, deployment, and travel pay
The short answer
Catastrophe crews deployed after hurricanes, floods, and wildfires are often held on unpaid standby for days and then paid only for wrench time, but standby under tight employer control is compensable under 29 C.F.R. § 785.17. Travel that is part of the principal activity, and all travel between sites, is hours worked under 29 C.F.R. § 785.38.
Deployment standby
Storm work runs in waves: crews stage near a disaster area, wait for assignments, and are told to be ready to roll on short notice. Where the wait is spent for the employer's benefit and the crew cannot leave the staging area, it is “engaged to wait” time under 29 C.F.R. § 785.17 and Skidmore v. Swift & Co., 323 U.S. 134 (1944).
Travel days and overnight trips
Travel away from home community that cuts across the normal workday is compensable under 29 C.F.R. § 785.39, and driving the crew truck is work time regardless of the hour under 29 C.F.R. § 785.41. California counts all time subject to employer control as hours worked under IWC Wage Order 4-2001 § 2(K) and Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000).
Per diem and the regular rate
Per diem that functions as disguised wages must be included in the regular rate for overtime under 29 U.S.C. § 207(e) and 29 C.F.R. § 778.217, a common source of underpaid storm-work overtime. Unpaid overtime is generally doubled as liquidated damages under 29 U.S.C. § 216(b).
Facts that usually decide these cases
- Staging-area confinement between assignments
- Long unpaid travel and mobilization days
- Per diem substituting for hourly wages
- 16-hour days paid at straight time
Weighed together under the framework of Owens v. Local No. 169, 971 F.2d 347 (9th Cir. 1992): Geographic restriction — how far you may travel while on call; Response time — how many minutes you have to answer or arrive; Call frequency — how often the phone actually rings; Personal interference — what the rotation stops you from doing; Trade or refusal rights — whether you can hand the shift off.
Frequently asked questions
- Is staging time before a deployment paid?
- If you must remain at or near the staging area and cannot use the time for your own purposes, it is compensable under 29 C.F.R. § 785.17 and Skidmore v. Swift & Co., 323 U.S. 134 (1944). Sleep time may be excluded only within the narrow limits of 29 C.F.R. § 785.22.
- Does per diem count toward my overtime rate?
- Per diem that is really compensation for hours worked must be included in the regular rate under 29 U.S.C. § 207(e) and 29 C.F.R. § 778.217. Reimbursement of actual, reasonable expenses may be excluded.
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