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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Calculating Working Time under FLSA (Part 1 of 2)
Published by Personnel Policy Service, Inc.
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THIS WEEK’S E-TIP: Calculating Working Time under FLSA (Part 1 of 2)
For many employers, the FLSA remains the single biggest source of day-
to-day legal compliance headaches. One recurring problem area is the
determination of which hours should be paid, such as for breaks and
travel time. In the next two E-Tips, you will find out what time counts
for
pay purposes. |
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THIS WEEK’S E-TIP: Calculating Working Time under FLSA (Part 1 of
2)
The Fair Labor Standards Act (FLSA) requirements for nonexempt
employees seem fairly straightforward. You must pay nonexempt
employees for all time actually worked, and you also must pay
overtime
for all hours worked over 40 in a single workweek.
But, do you know how to treat time when the nonexempt employee is
not
really performing his stated job duties? For example, do you have to
pay
an employee who has to travel to his first work appointment? Or,
what
about the time an employee spends “on call” waiting to work if
needed?
And, when do meal and rest periods have to be paid? The answers to
these questions are very important for calculating the total number
of
hours an employee should be paid, and thus for determining when
overtime is owed.
Fortunately, regulations issued by the Department of Labor (DOL),
found
in 29 C.F.R. section 785, provide detailed (though a bit dated)
guidance
for determining what are hours worked that must be compensated.
(Download
special free report: “How to Comply with FLSA Hours of Work
Requirements".)
In this week’s and next week’s E-Tips, the Editors
answer the top seven questions about the legal definition of working
time
and provide examples of when a nonexempt employee should be paid
for that time.
In this week’s E-Tips, you will find out the basic definition of
working
hours, when nonexempt employees must be paid before and after
normal working hours, and when waiting time must be compensated.
Next week’s E-Tips will address pay for meal and rest breaks,
training
time, and travel time.
1. What is the basic definition of working hours?
The Supreme Court provided the definition for working hours adopted
by
the FLSA regulations in its long-standing decision Tennessee Coal,
Iron
& Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944). In
that
case, the Court determined that working hours include all time
during
which a nonexempt employee is engaged in physical or mental exertion
controlled or required by the employer and pursued necessarily and
primarily for the benefit of the employer and its business. (See 29
C.F.R.
§785.7.) In addition, the time an employee spends after clocking in,
getting to his job, and preparing for it generally is compensable.
However, the time which the employee spends waiting, just because he
arrived early, is not. (See 29 C.F.R. §785.7 and Q&A #3 below.)
As a general rule, employers do not have to pay for any time before
and
after the employee’s “principal activity” unless there is a
contract,
custom, or practice requiring pay for these preliminary and
concluding
activities. However, time spent by employees in activities before or
after
the regular workday must be counted as time worked if the activities
are
an integral and indispensable part of the employee’s principal
activities.
(See 29 C.F.R. §785.9 and Q&A #2, below.) Working hours also may
include time when the employee does not actually perform any work
but
is engaged to wait. (See Q&A #3, below.) |
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2. What if a nonexempt employee begins
working before his
regularly scheduled start time or continues working at the end
of his
shift?
According to the FLSA regulations, if you allow or permit
employees to
perform work, you must count this time for compensation and
overtime
purposes, even if you did not request or schedule the work. (See
29
C.F.R. §785.11.) Therefore, if you are aware that an employee is
working more time than is required, you should compensate the
employee, even if you did not specifically request the
additional work.
For example, an employee may voluntarily continue to work at the
end of
a shift to finish an assigned task. If you know or have reason
to believe
that the employee is continuing to work, the time is considered
working
time that must be paid. It is management’s duty to stop
employees,
through discipline or other means, from working additional time
if it does
not want to pay for the work time. Merely having a rule against
extra
work is not enough; you also must make every effort to enforce
the
restriction.
In addition, you should not use misleading phrases such as
“employees
are not permitted to begin work more than 15 minutes before
their
scheduled starting times or to stop work more than 15 minutes
after their
scheduled quitting times.” This wording implies that employees
may
work the extra minutes each day without having the time counted
for pay
purposes.
3. Do we have to pay nonexempt employees for time spent
waiting?
Your obligation to pay for waiting time depends on the
particular
circumstances. According to the FLSA regulations, “facts may
show that
the employee was engaged to wait or they may show that he waited
to
be engaged. Such questions must be determined in accordance with
common sense and the general concept of work or employment.”
(See
29 C.F.R. §785.14.) The regulations generally distinguish
between on
duty time, off duty time, and on call time.
-- On duty time. Where waiting is an integral part of the job,
the
employee is engaged to wait, and the time spent waiting is
compensable
work time. Typically, the periods of inactivity are of a short
duration and
unpredictable, and the employee cannot use the time effectively
for his
own purposes. “The time is work time even though the employee is
allowed to leave the premises or the job site during such
periods of
inactivity ... It belongs to and is controlled by the employer.”
(See 29
C.F.R. §785.15.) Examples provided by the regulations include:
- A secretary who reads a book while waiting for
dictation
is working.
- A messenger who works a crossword puzzle while
awaiting assignments is working.
- A repairperson is working while he waits for his
employer’s customer to get the premises ready. (See 29 C.F.R.
§785.15.) (Note: if these examples seem a little out-of-date,
it is
because the regulations were last amended in 1970.)
-- Off duty time. An employee is considered to be off duty
during
periods when he is “completely relieved from duty and which are
long
enough to enable him to use the time effectively for his own
purposes.”
An employee is not completely relieved from duty unless he is
told in
advance he may leave the job and that he will not have to begin
work
until a specified hour has arrived. (See 29 C.F.R. §785.16(a).)
-- On call time. An employee who is required to remain on call
on the
employer’s premises is working while on call and must be paid
for that
time. In addition, an employee who must remain on call so close
to the
employer’s premises that he cannot use the time effectively for
his own
purposes is also working while on call. However, if the employee
is not
required to remain on the employer’s premises but only is
required to
leave word at home or with his employer where he may be reached,
he
is not working while on call and does not have to be paid. (See
29
C.F.R. §785.17.) In determining whether on call time should be
paid,
courts typically examine how much control the employer has over
the
employee and whether the employee can effectively use the on
call time
for personal purposes.
Next week: Pay for meal and rest breaks, training time,
and travel time. |
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Subscribers to the
Personnel Policy Manual (print/online) and HR Policy Answers on
CD can find information on working time for nonexempt employees
in Hours of Work, Chapter 207, Appendix A.
Not a subscriber? If you would like to order one of our policy
chapters,
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