As small business attorneys, our clients often ask about laws that mandate how and when employees must be paid.
Many small businesses employ workers who are considered non-exempt under the Fair Labor Standards Act (FLSA). The employer must pay those employees at least minimum wage for all “hours worked.” Overtime requirements to are determined by this standard of “hours worked.”
For some employers, however, the activities that qualify as “hours worked” may be more complicated than first appears. A few of the examples below have been classified by the U.S. Department of Labor as work and therefore must be compensated as hours worked.
Under certain circumstances, the time an employee spends waiting may be considered work. If an employee is waiting while on duty or has been engaged to wait, such as a plumber who is waiting for the next service call or a firefighter who is at the firehouse between emergency calls, this time qualifies as part of their hours worked under the FLSA. Situations where the employees are not free to use the time for their own purposes and the time waiting is controlled by their employer will usually be considered hours worked.
In contrast, if a truck driver arrives at a destination at 12 p.m. and is completely and expressly relieved from duty until the return trip six hours later, the off-duty time is not considered hours worked. During these six hours, the driver is free to use the time for his or her own purposes.
On-call employees who are required to stay at the employer’s premises or so close that they are unable to use the time for their own purposes must be paid for the time spent on call. However, employees who are merely required to leave contact information with their employer so they can be reached if needed are not working according to the FLSA. For example, a state employee who must be prepared and alert between 8 a.m. and 3 p.m. must be compensated for that time, while an employee who was called at 8 to begin at 3 does not need to be compensated until that 3 p.m. shift begins.
Rest and Meal Periods
Many employers voluntarily provide short break periods (usually 20 minutes or less) for employees which are compensated as working time. These break periods must be included as part of the employees’ hours worked under the FLSA. However, if the employer provides time designated for a meal (typically 30 minutes or more), during which the employees are completely relieved of their duties for the purpose of eating a regular meal, it is considered a rest period. This meal period does not qualify as hours worked. This is true even if the employee must remain on the employer’s premises during the meal period.
Lectures, Meetings, and Training Programs
An employee’s attendance at lectures, meetings, training programs, and similar activities which benefit the employer may be counted as working time. These hours may be exempt from work time only if all four of the following criteria are met: (1) attendance is outside of the employee’s regular working hours; (2) attendance is voluntary (the employee’s job would not be adversely affected by not attending); (3) the program is not directly related to the employee’s job; and (4) the employee does not perform any productive work during his or her attendance at the program.
In order to evaluate travel as time worked, a few key facts must be taken into account. The conclusion depends upon whether the travel is an integral part of the principal activity the employee was hired to perform on the workday in question. It is generally accepted that employees are usually not considered to be working while traveling to and from their workplace. There are exceptions. For example, an employee can consider travel time as hours worked when the employee’s shift has ended, the employee is called back on duty, and is asked to travel a substantial distance back to a worksite. In that case, the time spent traveling to and from the worksite must be considered as hours worked. Similarly, if an employee, who usually works at a particular site, is given a special work assignment in another location, travel to and from the other location is considered to have been performed for the employer’s benefit and at his request. In those circumstances, the time spent traveling to and from the special worksite is considered as working time under the FLSA. When an employee must travel as part of his principal work activity, such as a delivery driver or long-haul trucker, that time is also considered to be hours worked.
Employees who are on shift for periods of less than 24 hours are considered to be working. This is true even even if they sleep or engage in other personal activities when not busy with work duties. If a shift lasts 24 hours or more, the employer must pay the employee for sleeping time and include that time as hours worked in calculating overtime unless the parties have agreed otherwise. Even if the parties have agreed to exclude sleeping time from the employee’s hours worked, they may do so for no more than eight hours. If the parties agree to a sleeping time of more than eight hours, only eight hours will be excluded from working time, and the rest of the period must be considered hours worked.
In order to exclude sleeping time from hours worked, the employer must provide adequate sleeping facilities, and the employee must be able to have an uninterrupted night’s sleep (at least five hours). If there are interruptions as a result of a call to duty, those periods must be included as working time-and the entire period must be included if the employee is unable to get at least five hours of sleep.
Time Suffered or Permitted to Work
If the employer permitted their employees to work or should be expected to know that they were working, those employees are entitled to be paid in accordance with the FLSA. This includes situations in which employees engage in work outside of their normally scheduled time without their employer’s express permission, but the employer is aware, or has reason to be aware, that the employee is doing so. For example, with the pervasiveness of smartphones, employees who respond to emails from home may be entitled to be paid for this time as hours worked.
We Are Here to Help
Violations of the FLSA can result in substantial fines. The examples discussed above are only some of the activities that may be considered hours worked under the FLSA. If you are confused about whether a particular activity should be considered hours worked in computing your employees’ compensation, our business planning law firm can help. Call our office today to schedule a meeting.