hours worked and related pay obligations thursday, february 13, 2014
TRANSCRIPT
Hours Workedand
Related Pay Obligations
Thursday, February 13, 2014
Please Note:
Descriptions of these federal and state laws are summaries and should
not be relied upon at face value without considering the text of the statutes and/or speaking with an
attorney.
Agenda
• What is work time?– Limited general concepts, state variations,
“cookbook” approach under each law
• What pay obligations flow from work time?– Meal and rest periods– Days of rest– Reporting pay, split shift premiums
What is “Work”?
• The FLSA does not include a definition of “work”
Continuous Work Day – Federal Law
• Employees must be paid for all hours within a workday, from the first principal activity to the last principal activity
• A “principal activity” includes any activity that is an integral and indispensable part of an employee's work
• In general, “work” includes all the time an employee must be on duty, on the employer’s premises, or at any other prescribed place of work
Work “Suffered or Permitted”
• All work “suffered or permitted” by the employer must be compensated, including:– Work requested or required by the employer– Work not requested, but permitted– Work the employer knows or has reason
to believe is being performed – even if not expressly requested
Key Concepts
• Work is broadly interpreted to the employee’s benefit
• Employees must be paid from “whistle to whistle,” with limited exception
• Work includes any time the employee is required, requested, suffered or permitted to work
• It is the duty of management to see that work not required or requested is not performed
Analysis of Working Time: Book-Ending the Day
• What time did the employee perform the first principal work activity?
• Is the employee performing work remotely?– Is remote work being captured in timekeeping
system?– Is travel time being captured?
• What time did the employee perform the last principal work activity?
• Is the employee working from home at night?
Is the Activity Work Time?
• Meal & Rest Breaks• Waiting Time• On-Call Time• Training/Meeting Time• Travel Time• Pre- and Post-Shift Activities• Sleep Time• Grievances, Suggestion Systems and Charitable
Activities
Meal & Rest Breaks
• A meal period may be unpaid if 30 minutes or longer and the employee is completely relieved of duties
• An employer may require an employee to remain at the worksite during a meal or rest break without making the meal period into work time under federal law
• A rest period of 20 minutes or less is compensable work time
On-Call Time
• On-call time is compensable if an employee is unable to use the time effectively for his/her own purposes– Required to stay on or close to the employer’s premises– Responds to calls frequently– Short required response time– Any other limitations on employee’s use of his or her time– Any practice which limits the burden of being on call
• On-call time is not work merely because the employee is required to carry a pager, cell phone or leave a telephone number where s/he can be reached
Waiting Time
• Employees must be paid for time spent “engaged to be waiting”
• Employees “waiting to be engaged” are not working
Training/Meeting Time
• Training/meeting time is compensable work hours unless all four of the following requirements are met:1. Attendance is outside regular
working hours2. Attendance is voluntary3. The training/meeting is not job
related4. The employee does not perform
any productive work during the training/meeting
• Compensable– Travel between job sites
during the work day– Travel to another city
for special one-day assignments (minus normal commute time)
– Overnight travel during the employee’s normal work hours (on a work or non-work day)
• Not Compensable– Normal home-to-work
commuting, unless employee begins work prior to commuting
– Overnight travel, if outside the employee’s normal work hours (on a work or non-work day)
Travel Time - FLSA
Travel Time
• Some states laws require all travel time to be paid except the normal commute
• Travel time can be paid at a different lower wage rate (e.g. at the minimum wage), if that rate applies to all travel
Travel in Company Vehicle - ECFA
• Home-to-work travel in a company vehicle, and any activities “incidental” to such travel is not work time where:– Use of vehicle is voluntary– No expense is incurred by employee in use of vehicle– Vehicle is of a type ordinarily used for commuting– Work sites are within normal commute distance of
employer's office
• Work:– Booting up and
turning off the computer
– Reading emails– Shift-change
conversations– Donning/doffing
• Not work: – Commuting– Walking from
the parking lot to the work station
– Waiting to punch a time clock
Pre- and Post-Shift Activities
“Donning and Doffing”
• Compensable:– If putting on and taking off clothing
or protective gear on the employer’s premises is required by law, the employer, or the nature of the work
– Waiting in line for uniform– Walking after obtaining the uniform
to the place where employees don/doff and to the work station
“Donning and Doffing”
• Not Compensable:– If employees are allowed to
don/doff clothing at home, but choose to change at work
– If the aggregate time spent donning, walking, waiting and doffing is de minimis
Cleaning & Maintaining Uniforms
• What is a uniform?– Defined by state law– Usually includes any distinctive clothing
that an employee would not wear on a non-work day
– Uniform: a shirt with a company logo– Not a uniform: khaki pants with a blue
shirt• Employees may be working if required
to clean or repair a uniform beyond normal washing and drying
Suggestion Systems, Resolving Grievances, Charitable Activities
• Time spent by an employee preparing suggestions, resolving grievances and participating in charitable activities need not be compensated if:– Participating in the activity is voluntary, and– Occurs outside normal working hours
Sleep Time
• Sleep time can be excluded from work time only if for employees on duty 24 hours, and the employee:– Agrees that up to 8 hours of sleep time will not be paid– Has adequate sleeping facilities – Is generally able to enjoy an uninterrupted night of sleep– Is paid for any interruption of sleep time – Is paid for the entire night if the employee gets less than five
hours of sleep– Up to three, one-hour off-duty meal periods also may be
unpaid
“Off-the-Clock” Red Flags• Recorded time is almost always a nice
round number (e.g., 9:00 a.m., 5:30 pm)• Recorded time is almost always the same as
the scheduled shift• Time records show a significant number of
missed punches, adjustments to time, or other anomalous entries
• Time punches/entries do not match hours worked shown on payroll records
• Employees observed in the workplace before clocking in, during lunch, or after clocking out
“Rounding” Time
• Rounding increment does not exceed quarter hour
• Rounding operates to the benefit and burden of the employee and the employer– Schedule corresponds with the rounding
increment– No employer practice undoes rounding– Round meal periods?
“De minimis time”• De minimis amounts of time
need not be recorded or paid• Time may be de minimis
based on:– Amount of time on
any single occasion– Frequency of occurrence– Administrative difficulty
in recording the time– Total amount of time at issue
Meal & Rest BreaksState Law
• About 25 states require meal breaks– States with meal break requirements
usually require a 30-minute break after 5 or 6 consecutive hours of work
– Some states require that employees be free to leave the worksite
• Less then 10 states require rest breaks– States with rest break requirements
usually require a 10-minute break for each 4 hours of work
California Meal Periods• One 30-minute meal period for every
five hours of work, unless– Six hours of work will complete the employee's
work for the day and the employee waives the meal period
– Variations by wage order for some initial meal periods and second meal periods
• An on-duty meal period can be used only where:– The nature of the work truly prevents the
employee from being relieved of all duties– The employee agrees in writing to work through
the meal period The meal period is counted and paid as work time
California Rest Periods
Reporting Pay
• Some states require employers to pay an employee for a minimum number of hours if the employee reports to work when no work is available – Paid at the employee’s regular rate– Pay the lesser of a minimum number of hours or the
scheduled shift– Requirements vary by state and, within states, can vary
by industry
Reporting Pay
• California – 2 to 4 hours• Connecticut – 2 or 4 hours in some industries• Washington, D.C. – 4 hours• Massachusetts – 3 hours• New Hampshire – 2 hours• New Jersey – 1 hour• New York – 1 to 8 hours,
depending on industry, shifts• Oregon – 1 hour to minors only• Rhode Island – 3 hours
Split-Shift Pay
• Employers may be requiredto provide extra pay for employees who work a split shift in:– California– New York– Washington D.C.
• Split-shift scheduling is prohibited in Hawaii
• California split-shift premium:– ((Hours Worked + 1) * MW) – Wages Earned
• New York split-shift premium
Split-Shift Pay
• Only New York defines a split shift:– 10 hour non-work period between shifts
• California, New York and D.C. all require an additional 1 hour of pay at minimum wage, but this requirement is met if:– Wages Earned > (Hours Worked + 1) * MW– If test not met, pay the difference
Day of Rest Laws
• Half a dozen states haveday-of-rest laws
• Many are related torecognizing a Sabbathand may have Constitutionalissues
• California – an employer must provide one day’s rest out of every seven
Questions and Answers
Thursday, February 13, 2014
Brian DixonLittler, San Francisco