When is Work, Work?
Under the Federal Fair Labor Standards Act (FLSA), all non-exempt employees must be paid the minimum wage for all hours worked in a work week and must be paid overtime at the rate of 1.5 times the employee’s regular rate of pay for all hours worked in excess of 40 hours in a work week. What isn’t often discussed is what hours of work or work related activity must be included in the count of hours of work paid at either regular or overtime rate. We run into these issues periodically when working with our hourly paid flexible workforces. Whether these workers are categorized as exempt or non-exempt, they must be paid for all hours of work. The following is a list of situations where we frequently field questions from our clients:
- Pre and Post-Job Activities. All job-related activities required as a part of an employee’s work must be calculated as hours of work. This includes work performed either before or after the employee’s actual work schedule and includes pre-start orientations, required after hours meetings, or any hours spent by workers for their employer’s (or our client’s) benefit. Examples of time to be paid would be the time it takes to complete a time card, to change in or out of required work clothes or equipment, to assemble materials needed to perform the work, or to receive instructions about the work—all are considered hours worked and the employee must be paid.
- Waiting Time. Employees who arrive at a work site early—earlier than the required start time—are not automatically entitled to be paid for any time they spend waiting to begin work. However, if an employee reports at the required time and then waits because there is no work to start on, the waiting time is compensable.
- Stand-By Time. Workers who are required to stand-by at a worksite “ready” to work, must be paid for this waiting time. Stand-by time typically refers to short-term time periods where a worker is not officially working but is asked to “stand-by” ready to work. The defining rule for stand-by time is that if the employee remains under the employer’s control to the point where they cannot use their time for their own purpose or benefit, the stand-by time must be paid.
- On-Call Time. On-Call time is different from Stand-By time in that it includes time spent by an employee “available” to be called into work while free to pursue activities for their own benefit. The FLSA requires employers to compensate workers for on-call time when such time is spent “predominantly for the employer’s benefit.” This means that an employee, who is only required to be available for work if asked, is not considered working and is not paid for their time on-call.
- Meal and Break Periods. Under FLSA rulings, time spent for meal or rest periods may or may not be compensable, depending on the amount of time provided for the break and to what extent the employee is relieved from their work duties while on break.
- Unauthorized Hours of Work. Employees who, with the direct or implied awareness of their employer, start work before their work is scheduled, work through unpaid breaks, or continue to work after their work schedule is officially over, are considered to be working during all these times periods and their time “at work” must be paid. This is true even if these hours of work were performed voluntarily and are considered by their employer to be “unauthorized.” If the work performed during these “unauthorized hours” benefits the employer, the FLSA requires that the employee be paid. This puts the burden on management to make certain that regular work time rules are rigorously enforced, perhaps even promising disciplinary action for employees who work in unauthorized ways. Merely stating that all work be authorized is not sufficient.