Do you have to pay your employees for that time?

The answer to this question is important because the federal Fair Labor Standards Act (FLSA) requires that a non-exempt employee must be paid at least the minimum wage for every hour worked and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for all overtime hours worked. It is up to the employer whether to count non-worked time (sick time, holiday time, personal time) toward the calculation of 40 hours a week.

Definitions

Let’s begin by laying out some definitions of terms used in the FLSA:

• “employee” includes any individual employed by an employer and includes an employee that the employer “suffers or permits to work.”
• “non-exempt” is the FLSA category of employee paid on an hourly basis and eligible for overtime.
• “work week” ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.
• “work day, means the time period between when an employee begins to work (i.e., commences his/her “principal activity”) and the time on that day at which he/she ceases such principal activity or activities. Contained in this definition is the understanding that the workday may be longer than the employee’s scheduled shift, hours, tour of duty, or production line time.
• “suffers or permits to work” is not synonymous with “required to work” and includes all work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

Are you engaged?

The answer to this question is often found in a person’s particular circumstances at work and will determine whether the time is compensable.

Engaged to wait

An employee who is engaged to wait is working. Some examples are a receptionist who reads a book while waiting for customers or telephone calls, a messenger working a crossword puzzle while awaiting assignments, a factory worker who talks to fellow employees while waiting for machinery to be repaired, a waitperson in a restaurant waiting for customers to arrive.

An on-call employee who is required to remain at work is also being engaged to wait.

Waiting to be engaged

An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is usually not working while on the on-call status. Off-duty waiting time is not hours worked if:

1. an employee is completely relieved from duty;
2. the periods are long enough to enable the employee to use the time effectively for his or her own purposes;
3. the employee is told in advance that he or she may leave the job; and
4. the employee is advised of the time that he or she is required to return to work.

There may also be other constraints on an employee’s freedom that will require waiting time to be compensated.

Rest and Meal Periods:

Rest periods of up to 20 minutes must be counted as hours worked. Bona fide meal break periods, such as the one required by Massachusetts state law, must be a minimum of 30 minutes. Under Massachusetts law the meal break need not be paid unless the employee does some compensable work during the meal break. It is important to remember that the employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved from duty if the employee is required to perform any duties, whether active or inactive, while eating.

Sleeping Time and Certain Other Activities:

An employee who is required to be on duty for fewer than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least five hours of sleep is taken.

Lectures, Meetings and Training Programs:

Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if the following four criteria are met:

• it is outside normal working hours,
• it is voluntary,
• not job related, and
• no other work is concurrently performed.

Home to Work Travel:

An employee who travels from home before the regular workday and returns to his/her home at the end of the workday (i.e., a commuter) is engaged in ordinary home to work travel, which is not work time.

Home to Work on a Special One Day Assignment in Another City:

An employee who regularly works at a fixed location in one city is given a special one-day assignment in another city and returns home the same day. The time spent traveling to and returning from the other city is work time, except that the employer may deduct/not count time the employee would normally spend commuting to the regular work site.

Travel That is All in a Day’s Work:

Time spent by an employee in travel as part of her/his principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

Travel Away from Home Community:

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on non-working days. Work time does not include time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

Final thoughts

All these various provisions highlight how crucial accurate record keeping is of a non-exempt employee’s time worked. The US Department of Labor has an FLSA e-laws advisor function on its website where you can ask a variety of different questions.

The Commonwealth’s minimum wage regulations, which cover many of the same topics in less detail, are available here.

AIM members with questions on this or any other human resources matter may contact the AIM Employer Hotline at 1-800-470-6277.