Counting Work Hours
Calculation of Work Hours Under the Fair Labor Standards Act
The Concept Of “Hours Worked” Under The FLSA
Under the Fair Labor Standards Act (“FLSA”), employees must be paid wages for all hours worked. The question is – what are “work hours” under the FLSA for purposes of determining the entitlement to overtime pay? While the FLSA does not provide a definition of work hours, the courts have defined the concept as any time spent in “physical or mental exertion that is controlled or required by the employer” and all hours an employee is required to give to an employer.
Hours worked needs to include not only hours spent actually performing job duties but also any other hours suffered or permitted to work by the employer for the employer’s benefit.
It is not uncommon for employees to work without specific authorization from the employer. For example, an employee may voluntarily continue to work at the end of the shift to complete an assignment or to complete other duties. If the employer knows or has reason to believe the employee is continuing to work, the time is considered working time for which compensation must be paid.
This rule also applies to work performed away from the premises or the job site. If the employer knows or has reason to believe the work is being performed, the employer must count the time as hours worked. It is the duty of the management to exercise its control and see that the work is not performed if it does not want to pay for the work. Employers cannot sit back and accept the benefits without compensating the employee. This is true even if the employer has adopted a rule against such work.
An employee who is required to remain on call on the employer’s premises or close to the premises that he or she cannot effectively use the time effectively for his or her own purposes is considered to be “on call.” An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home, or with the company where he may be reached or even wear a beeper or carry a cellular phone may not be working while on call. For the beeper and cellular requirements, distance and mobility would determine if the employee would be considered working or not.
Attendance at these types of programs and similar activities need not be counted as working time if the following four criteria are met: (1) attendance is outside of the employee’s regular working hours; (2) attendance is in fact voluntary; (3) the course, lecture, or meeting is not directly related to the employee’s job; and the employee does not perform any productive work during such attendance. Attendance is not voluntary, however, if it is required by the employer. It is also not voluntary if the employee is given to understand or led to believe that her present working conditions or the continuance of her employment would be adversely affected by nonattendance.
Home to work (normal commute): An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home-to-work travel. This is true whether he works at a fixed location or at different job sites. Normal commuting is not work time and an employer is not required to pay for commuting time.
Special One Day Assignments: Travel time to and from special assignments is typically regarded as work time for which compensation must be paid. An example is an employee who is required to drive three (3) hours to and from a meeting in another city. This is not considered normal commute time. Instead, it is regarded as integral part of the “principal” activity which the employee was hired to perform and, therefore, must be treated as compensable.
Normal Travel During Work Hours: Time spent by an employee traveling as part of his or her principal work activity, such as travel between job sites during the workday, must be counted as hours worked.
Travel Away from Home Community: Travel away from home is any travel that keeps an employee away from home overnight. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on the employee’s regular working days during normal working hours, but also during the same hours on nonworking days. The Department of Labor does not consider time spent in travel away from home outside of regular working hours (as a passenger on an airplane, train, boat, bus, or automobile) as work time. Employers should check state law, however, to see whether the time is considered work time under state law.
Time employees spend waiting rather than performing their principal activities may constitute hours worked depending on the circumstances. The basic test is whether the employee is “engaged to wait” or “waiting to be engaged.”
“Engaged to wait” time is compensable time because it is controlled by the employer. “Waiting to be engaged” time is not compensable if the employee is duty-free and can use the time for his own purpose. An example of “Engaged to Wait” is a secretary who does a crossword puzzle while waiting for a rewrite on a memo. The rule also applies to employees who work away from the plant or office. For example, a cable installer is working while he waits for his employer’s customer to get the premises ready.
Vacation, Sick Pay and Holidays
The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (Federal or otherwise). They are not considered hours worked and do not apply to overtime calculations.
Breaks and Meal Periods
Rest periods of short duration, usually 20 minutes or less, must be counted as hours worked and compensated by the employer.
Bona fide meal periods are typically not work time. The employee must be completely relieved from duty during the meal period. Thirty (30) minutes or more is long enough for a bona fide meal period, as long as the employee is not required to perform any duties during that time. It is not necessary that an employee be permitted to leave the premises if he or she is completely freed from duties during the meal period.
In DOL audits, employers are routinely asked to provide records demonstrating that the employee took lunches. Automatic docking for meal periods may result in back wages due if the employer cannot prove that the employee took lunch on that particular day.
Tracking Hours Worked
Employers may use any timekeeping method they choose. They may use a time clock, have a timekeeper keep track of employees’ work hours, or tell their workers to write their own times on the records. Any timekeeping system must be complete and accurate. If a time clock is used, employers are free to disregard early or late punching by employees who voluntarily arrive early or remain after hours, so long as the employees do not perform any work during these times.
The DOL also allows for two exceptions to timekeeping — de minimis time and rounding of hours.
De Minimis: An employer can disregard insubstantial or insignificant amounts of time beyond a worker’s scheduled hours if it cannot “as a practical matter” precisely record the small portions of time involved. This rule applies only where “there are few minutes or seconds of uncertain and indefinite periods of time involved.” An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.
“Rounding’’ practices: It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees’ starting time and stopping time to the nearest five (5) minutes, or to the nearest one tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes, this practice of computing working time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.
Baird Quinn’s Employment Lawyers Are Available To Provide Assistance On Wage and Hour Issues under the FLSA and State Law
Baird Quinn’s Denver FLSA lawyers assist employers and employees in addressing issues under the FLSA. Our Denver wage and hour lawyers have represented employers in federal and state audits and in developing wage and hour policies. We also represent clients in litigation arising from alleged non-compliance with wage and hour issues under the FLSA and state laws. We invite you to contact our labor and employment lawyers with your FLSA wage and hour and state law wage and hour issues. If you have an unpaid overtime claim, please contact us. You may go to the following link for contact information and additional information about our FLSA employment lawyers. Contact Us