Work time under the FLSA
Business subject to more frequent violations
Salaried basis payment defined
Travel time
Training time
On-call time, waiting time, break time
Meal periods, sleep time
Can overtime pay be waived by agreement?
Volunteers coverage

What is considered "work time" under the FLSA?

All work time must be counted in computing an employee's overtime pay including work not requested but suffered or permitted by an employer.

Two types of work primarily are involved when employers violate this rule: 1) Work that an employer orders to be done and then refuses to count as work time, such as many pre-shift and post-shift activities; and 2) Work that an employer knows is being done, or would know about if it made a reasonable inquiry, which the employer ignores.

Pre-Shift and Post-Shift Duties are activities that employees are required to perform before and after their scheduled shift. Any activity that benefits the employer is usually counted as work time. For example, getting a restaurant ready to open for business, meeting with wait staff about evening specials, donning protective gear and preparing equipment in a factory, or law enforcement employees checking in and out their guns are all considered to be work time even if these activities occur before the employer's scheduled shift. Some employers will hold employees after their scheduled hours to wait for a co-worker or to perform clean-up activities. Time spent performing these activities is compensable work time.

Examples of pre-shift and post-shift duties that courts have found to be compensable under the FLSA include showering and cleaning up after work at a battery plant, changing into security guard uniforms, checking in and out firearms, conducting safety inspections and caring for police dogs while at home.

Suffered or Permitted Work is work that benefits the employer in some way, that the employer knows or should know the employee is performing, and which the employer has not taken reasonable steps to prevent from occurring. The typical type of work that falls within this category is where the employer allows the employee to work after hours outside the employer's presence, such as work the employee takes home or an employee who closes up a shop. The FLSA does not permit the employer to accept the benefits of the employees' work time without paying the employee for it.

In addition, employers can not escape the payment of overtime for compensable overtime hours worked by virtue of an announcement that no overtime is authorized without prior supervisory approval. If an employer has such a rule it can not accept the fruits of the employees' labor without paying the employees.

Records of suffered or permitted work time are often incomplete or nonexistent. This does not prevent recovery of damages! Under the FLSA, employers bear the burden of keeping accurate employment records. If the employer fails to maintain records, the courts rely on employees' reasonable estimates of their work time.

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Are employees who work in the restaurant, grocery and food preparation business, subject to more frequent violations of the flsa then other industries?

Yes, FLSA violations are rampant among restaurants, grocery, and other food preparation employers. Remember, no one can "volunteer" to work for free for their employer. Yet, employers try to either trick or to intimidate employees into doing so. Some recent cases illustrate this:

• Chain restaurants have been sued in court for working employees "off-the-clock," failing to pay restaurant managers overtime compensation, and improperly taking a "tip credit" for time in which workers are not working in a job in which tips are paid. These cases have been settled for millions of dollars.
• Restaurants have been sued for taking a percentage of the employees' tips when the employer charges a fixed percentage of patrons' meals as tips. The employer was successfully sued for fraud as well as wage violations.
• Workers at meat packing facilities have sued to recover millions of dollars against facilities for unpaid time spent donning garments and preparing equipment before and after their shifts.
• Grocery works at a grocery chain have successfully sued to recover millions of dollars for off-the-clock work. The employees alleged they worked off-the-clock and their employer engaged in the following unlawful practices:
• Punishing employees who fail to perform assignments within unrealistic time periods thereby encouraging and rewarding employees who perform work "off-the-clock" without compensation.
• Instructing bookkeepers and others to record meal periods as non-worktime even where the employees worked through their meal periods
• Reducing alleged salaried managers pay for disciplinary infractions for periods of less than a day. This can make the managers hourly workers eligible for FLSA overtime compensation.
• Rewarding employees who work off-the-clock by commenting favorably on their working off-the-clock, and encouraging them to do so by suggesting promotions and other benefits may be tied to working off-the-clock.
• Poultry workers are suing for overtime for time spent donning and taking off safety and sanitary gear before and after work hours, and for working them off the clock, and failing to pay for short breaks.
• Chicken catchers are suing for overtime that they were denied when their employer alleged the chicken catchers are "independent contractors."

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How is payment on a salaried basis defined?

The U.S. Department of Labor defines payment on a salaried basis as receipt of an employee's full salary in any workweek in which the employee performs any work without regard to the number of hours or days worked. There are exceptions to this in that some courts have found the payment of straight time overtime pay to employees does not necessarily mean that they are paid on an hourly basis. Employees whose pay is docked because they do not work their full scheduled workday are considered to be hourly paid, and are not paid on a salaried basis.

IMPORTANT! the administrative, executive and professional exemptions do not apply to hourly paid employees. In other words, to apply these exemptions to an employee, an employer must prove that the employee is paid on a salaried basis, and that the employee's job duties fit within the claimed exemption. Many salaried employees are entitled to overtime pay because their duties do not meet the test for the overtime exemption their employer is claiming

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When does travel time count as overtime work?

Generally, travel time conducted for work during work hours is compensable whereas ordinary home-to-work travel is not. Set forth below are some different travel circumstances:

• Working While Traveling: Time spent working while traveling is compensable. For example, in the federal government travel time while driving a government vehicle, at least outside of the employee's regular commute, is considered compensable work time.
• Travel On Weekends: Travel on weekends is compensable even if no work is performed so long as the work hours cut across the administrative workday for the employee. For example, if the employee's administrative workday is 7:00 a.m. to 5:00 p.m. and the employee travels on a weekend during those hours, the travel time is compensable.
• Emergency Travel from Home to Work: This time can be compensable depending on the circumstances. For example, if a worker is called in the middle of the night and ordered to return to work. Interestingly, the Department of Labor takes no position on the compensability of this time.

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When does training time count as overtime work?

Attendance at training, meetings and lectures must be counted as work activities unless all four of the following criteria are met:

• Attendance is outside the employee's regular work hours;
• Attendance is voluntary;
• The course is not directly related to the employee's job; and
• The employee does not perform any productive work while attending the lecture.

Attendance is not voluntary if the employee is led to believe that his or her present employment would be adversely affected if he or she did not attend.

Certain DOL approved apprenticeship training programs are exempt from the FLSA.

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When does an employer have to pay for on-call time, waiting time and break time?

Break Time is Compensable Unless the Breaks are Really Long.

Although there is little case law on the issue of whether breaks are compensable, the U.S. Department of Labor's rule is that if a break or rest period is twenty minutes or less, the break time is compensable. Longer breaks, including meal breaks, may be compensable, as well, depending on the circumstances.

Waiting Time is Often Compensable

Time spent waiting while on-duty is compensable, particularly if it is on the employer's premises, is unpredictable and/or is of relatively short duration. For example, a restaurant worker who is required to report to work at a certain time, though he does not have to bus tables until a certain number of customers are present, is probably entitled to compensation for his waiting time.

In addition, in certain occupations employees are hired to be "engaged to wait" for something to occur. For example, fire fighters and emergency workers are hired, in part, to be available to respond immediately to emergencies. Some people are hired to be available to immediately repair expensive machinery. Some truck drivers are hired to wait until assignments come in so that they can leave immediately. All of these employees have been found to be "engaged to wait" and, therefore, their waiting time has been found to be compensable.

Must an Employer Pay Employees for On-Call Time?

Some employees are required to remain available at home or on the employer's premises during meal periods to respond to calls in person, or through a telephone or pager. Clearly, the time spent responding to calls, including time spent at home on the telephone or computer responding to calls or E-Mail, is compensable. With regard to waiting time, however, there is no bright line rule as to whether or not on-call time is compensable or not.

In determining whether on-call time is compensable, the factors that courts have viewed include:

• the average number of calls the employee responds to during the on-call period;
• the required response time: in other words, the amount of time in which the employee has to be at the work site after being called in;
• whether an employee is subject to discipline for missing or being late to a call-back;
• the extent to which an employee is able to engage in other activities while on-call; and
• the nature of the employee's occupation (in some jobs, it is the nature of the job to be paid to be available to respond immediately to a situation).

Based on these criteria, fire fighters and emergency medical personnel have been found to be entitled to overtime pay for the entire on-call period where the on-call period was spent at home.

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Are meal periods and/or sleep time counted as overtime hours?

Meal periods and sleep time spent on the employer's premises are compensable under certain circumstances. Employers who require employees to remain on the employers premises and to respond to calls and interruptions during an employee's meal periods and sleep time are required, in most circumstances, to pay the employees for their meal periods and sleep time.

On-Duty Meal Periods are Compensable.

The Department of Labor's regulations require that meal periods be counted as compensable work time unless the employee is "completely relieved from duty for the purposes of eating regular meals." Thus, employers who impose work-related restrictions on employees during their meal periods, such as answering phones or responding to work related requests should pay employees for their meal periods.

An example of how this test is applied is a case involving telephone line installation workers. Their employer required them to eat lunch at their worksite and to remain there throughout the meal period to ensure that the expensive equipment that they used was not stolen. The entire lunch period was found to be compensable work time.

Some courts apply a different test than the Department of Labor's meal period test. These courts have applied what is called the predominant beneficiary test. Under the predominant beneficiary test, courts determine whether the employer or the employee is the predominant beneficiary of the meal period. Under this test, employees who are required to remain on the employer's premises in a place which is not a dining room, or some other area which is not an eating facility, are usually found to be entitled to compensation for their meal periods. In these circumstances, the employer has been found to place substantial restrictions on the employee during the meal period for the employer's benefit.

For example, in cases in which police officers and fire fighters have been required to monitor their radios and to remain on the employer's premises during a meal period, the employer is usually considered to be the predominant beneficiary of the meal period and the employer must pay the employees for their meal periods. These cases are particularly strong if the police officers receive 1 or more calls on average during each meal period.

On-Duty Sleep Periods are Compensable Under Most Circumstances

As a general rule, employers must count on-duty sleep periods as compensable work time. On-duty sleep periods are occasions in which an employee is required to sleep on the employer's premises and may have his or her sleep interrupted by some type of incident to which the employee must respond. Employers can avoid paying for on-duty sleep periods only if the employer has an express or implied agreement to exclude such periods, the employer has furnished adequate sleeping facilities and the employee's work day is 24 hours or longer. In addition, under no circumstances may an employer avoid paying for on-duty sleep time if the employee has not had the opportunity to receive 5 or more hours of sleep. Under no circumstances can an employer exclude more than 8 hours of on-duty sleep time per 24 hour shift when computing employees' overtime pay.

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Can an employer and employee agree to waive overtime pay?

No! Overtime pay may not be waived by agreement between the employer and employee. If the employer does not want employees to work overtime, it must establish and enforce workplace rules prohibiting overtime.

In addition, an employer who is caught violating the overtime laws will not avoid back payments by cutting a deal directly with employees. Courts have found that agreements that purport to waive back overtime pay claims are unenforceable unless the Department of Labor supervises them or the employee is represented by an attorney.

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Are volunteers covered by the FLSA?

There is no such thing as "volunteers" who work for for-profit enterprises. For example, persons who "volunteer" to work for computer or internet companies in exchange for free internet service would be covered by the FLSA. They would be entitled to the minimum wage and overtime pay. Volunteering as part of an apprenticeship or a school internship is permitted provided certain criteria are met.

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