19: Hours Worked

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Are you calculating your nonexempt employees work hours correctly?

You are required to pay your nonexempt employees for all time worked. Seams easy enough, but there a nuances you need to know to be compliant.

If your employee is required to be working, be available to work or is being permitted to work – at either your premises or at some other location, then you have to pay them for their time spent, even if they are just waiting around for something to happen or someone to do something.

Waiting Time:

Engaged to wait (which is work time) – DOL example: A secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”

Waiting to be engaged (which is not work time) – DOL example: A truck driver is sent from Washington, DC to New York City, leaving at 6 a.m. and arriving at 12 noon, and is completely and specifically relieved from all duty until 6 p.m. when he again goes on duty for the return trip. The idle time is not working time. He is waiting to be engaged.

On-Call Time:

If you require your employee to remain on premises while on call, then they must be compensated. If they are allowed to leave and only required to be reachable by phone or message, then this not working time.

Rest and Meal Periods:

Short rest periods of 20 minutes or less, are common and are customarily paid for as working time. However, unauthorized extensions of an authorized work breaks does not need to be compensated but only when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished.

Meal periods (typically 30 minutes or more) generally need not be compensated as work time unless the employee is not relieved of their duties. If you allow them to eat lunch at their workstation and continue working or to be available to work, then you must pay them for that time.

 Sleeping Time and Certain Other Activities:

If you require your employee to be on duty for less than 24 hours and you allow them to sleep or engage in other personal activities when not busy then you must pay them for that time.

If you require your employee to be on duty for 24 hours or more you may exclude a regularly scheduled sleeping period from hours worked. The exclusion may not be form more than 8 hours as long as you provide adequate sleeping facilities and the employee can usually enjoy an uninterrupted sleep. And, you can’t take the reduction unless your employee sleeps for at least 5 hours.

Lectures, Meetings and Training Programs:

You don’t have to pay for an employee’s attendance at lectures, meetings, training programs and similar activities but only if these four criteria are met:

  • It is outside normal hours.
  • It is voluntary,
  • It is not job related, and
  • No other work is concurrently performed.

Travel Time:

The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

Home to Work Travel:

Travel from home to work and back – to your employees usual and customary workplace, is not work time.

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

If your employee regularly works at a fixed location in one city and you send them out on a special one day assignment in another city, and returns home the same day, then the time spent traveling to and returning from the other city is work time. But, you may deduct that time the employee would normally spend commuting to the regular work site.

Travel That is All in a Day’s Work:

In other words, travel that is part of their regular duties like 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:

Overnight is travel away from home is work time when the travel is during your employee’s working hours, even if the travel is on a non-working day.

Travel that is outside of regular working hours where your employee is a passenger on an airplane, train, boat, bus, or automobile, is not time working but only if your employee is not actually working.

If your employee is operating the vehicle he is traveling in then that is time worked. If your employee had the option not to do the driving, for example, but volunteered, then that time could be unpaid for those travel hours outside the normal work hours.

Some states have travel time laws that are more generous than the federal FLSA. Employers must comply with both federal and state travel time laws.

Summary:

The FLSA requires you to pay your nonexempt employees for all hours worked where you “suffer or permit” work to be done. Unfortunately The act, doesn’t contain a definition of the word “work”. So, eventually the Supreme Court had to get involved and they said that time spent in “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” is work.

In another case the workweek was defined to include  “all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place”

And, in another case it was established that work not requested, but suffered or permitted, is work time.

For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, the reason is immaterial. If you know or have reason to believe that he is continuing to work then that’s working time.

About the author, Thomas

I have 20 of years insurance industry experience in C-level management, focusing on all aspects of workers compensation, risk management, loss control, employee benefits, HR, payroll and professional employer organization (“PEO”) operations. Currently, I am the owner and CEO of Humanly HR, and founder and host of SmallBiz Brainiac; a podcast providing employer intelligence to small business owners.

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