Provided by: Judge Ruth B. Kraft 

 

Under the Fair Labor Standards Act (FLSA), non-exempt or hourly employees must be paid the minimum wage for all hours worked in a work week and must be paid overtime at the rate of 1.5 times the employee’s regular rate of pay for all hours worked in excess of 40 hours in a work week.  California, among other states, takes it a step further, requiring overtime for hours worked in excess of eight hours a day and for work performed on the sixth and seventh days of a work week. Wage and hour rules are extremely nuanced and it is easy for an employer to find itself in violation.  Furthermore, if one disgruntled worker seeks legal counsel, a collective or class action suit is not far behind. 
 
Here are Judge Ruth’s “Top Six” rules for defining time worked:
 

  1. Activities before or after work:  Job-related activities required as part of work are covered even if performed before or after the specified work schedule.  Some examples would include filling out time, material or requisition sheets, removing trash, fueling cars, and turning on computers. These are all compensable because they are done at the employer’s request and for its benefit.  Time spent changing in and out of work clothes or uniform, when required, must be counted as hours of work.
  2. Waiting time: Employees who arrive early at the workplace are not entitled to be paid for this time.  However, if an employee is directed to arrive at a set time and then is required to wait until a task is available, then the waiting time would be compensable.
  3. Stand-by time: is compensable time.  Examples are requiring a worker to stand-by during an equipment breakdown or shut-down.
  4. On-call time: On-call time is time spent by employees in their own pursuits but where they must be available to be called back to work on short notice subject to the employer’s needs.  FLSA requires employers to compensate workers for on-call time when it is spent “predominantly for the employer’s benefit”.  Typically, on-call is spent off the premises so the inquiry is focused on the issue of “predominance”.  However, if an employee is required to remain on-call at or adjacent to the premises, then he would be deemed to be working. In contrast, an employee who is merely required to leave a contact number with the company would not be considering to be working while on call.
  5. Breaks: Meal or rest periods are generally not compensable.  Analysis would depend on whether the employee is relieved from duty and the amount of time allowed for the break.  If a worker is expected to eat at his desk while engaged in work, the time period would be compensable and this would give rise to a violation of the wage/hour laws.  A true meal period must be of sufficient duration, at least ½ hour, and the worker must be relieved of all duties.  Brief rest breaks (formerly known as cigarette breaks) are considered time worked by the US Department of Labor and must be compensated.
  6. Unauthorized work:  If an employee starts work before the commencement of the shift, works through breaks designated as uncompensated, or works after the conclusion of the shift, this constitutes work.  The employer is deemed to have condoned the work by virtue of receiving benefit from it and the hours must be counted.   Management must not only establish rules prohibiting such work but enforce it to avoid paying overtime for work it does not wish to be performed.  Employees who work unauthorized or unassigned hours should be subject to progressive discipline, based on the employer’s policy.

 
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Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.