"A fair day's wage for a fair day's work: it is as just a demand as governed men ever made of governing. It is the everlasting right of man." Thomas Carlyle, Scottish Author and Philosopher

"If a man or a woman puts in an honest day's work, they should be able to earn a living wage." Richard J. Codey, Politician

"It is but equity...that they who feed, clothe and lodge the whole body of the people, should have such a share of the produce of their own labor as to be themselves tolerably well fed, clothed and lodged." Adam Smith, The Wealth of Nations, 1776

"Wages are determined by the bitter struggle between capitalist and worker." Karl Marx, German political and economic philosopher

“Honest Wages for an Honest Day’s Work!”

“Honest Wages for an Honest Day’s Work!”

General

The primary purpose of this section is to help employees better understand what part of their workday and “workweek” activities constitute “Hours worked” under the Fair Labor Standards Act (“FLSA” or Act) i.e., getting paid “Honest Wages for an Honest Day’s Work!”.

All employees covered under the FLSA must be paid a minimum wage for all hours worked. Determining exactly what constitutes “hours worked” is essential in determining an employee’s compensation and an employer’s compliance with both minimum wage and overtime requirements of the Act.

Specifically, the FLSA requires that all covered employees be paid at least the minimum wage for all “hours worked”. The FLSA also provides that covered, employees who work more than 40 hours in the workweek must receive at least one and one-half times their regular rate of pay for their overtime hours (hours worked over 40 in a workweek). The amount of pay owed to you, as an employee, cannot be determined without knowing the total number of hours actually worked by you during each workweek.

Also, the FLSA requires employers to keep records on wages and all hours worked by employees. In recording working time under the FLSA, infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded. This rule applies only when accounting for a few seconds or minutes in time and where the employer’s failure to count such time is justified by industrial realities. However, an employer may not arbitrarily fail to count any part, however small, of working time that can be practically determined.

In determining, under the FLSA, whether an employer is liable to an employee for time allegedly worked, the nature of the employee’s work-related activity must be closely examined. Specifically, the FLSA addresses whether an employee’s “hours worked” is compensable under the following workplace scenarios:

“Pre-and-Post” clock Job related Employee Work Activities

Employee “Meal Periods” and “Rest Breaks”

Employee “Waiting Time”

Holidays, Vacations, and Sick Time

Employee Training Programs, Lectures and Meetings

Employee “Travel Time”

Employee “Sleeping Time” at work

Employee “Split Shifts” and “Layover Time”

“Unauthorized Work” by Employee

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Pre-and-Post clock Job related Activities

Preliminary or postliminary work-related job activities compensable “by contract, custom or practice” are considered working time covered by the FLSA. Similarly, job- related activities required as a part of an employee’s work are covered, even if they are performed before or after the employee’s specified work schedule.

For example, pre-job activities such as filling out time, material or requisition sheets, checking job locations, removing trash, fueling cars and picking up plans are compensable work if done at the employer’s behest and for the employer’s benefit. Because donning (putting-on) and doffing (taking-off) protective work gear that is “integral and indispensable” to an employee’s work is a “principal activity”, the continuous workday rule mandates that the time spent walking to and from a work station after donning and before doffing protective gear, as well as the time spent waiting to doff, also are working time under the FLSA.

In general, all hours worked within the employee’s regular working hours are compensable if they are for the employer’s benefit. However, specifically, whether pre- and post job-related work activities are compensable depends on the specific circumstances of a particular situation and whether such activities are “integral and indispensable” to an employee’s “principal activities”.

Note: time you spend in the following activities would not be hours worked even though it might be time spent on your employer’s premises or another assigned place of duty: walking, riding, or traveling to and from the actual place where you perform the principal activities which you are employed to perform would not be hours worked.

For example, if you travel to a parking area and complete the trip to the work site in a company bus, the time spent traveling to the parking area and riding on the bus to the work site is not hours worked. Activities which occur either prior to or after the time that you end your principal activities on any workday would not be hours worked.

For example, showering at the beginning or end of each workday, for your own benefit and convenience and is not directly related to your principal activities, would be considered preliminary or postliminary activity and would not be hours worked. This is the case whether you are on or off your employer’s premises or before or after you have checked in or out unless there is an employer/employee contract and/or customs or practices that state to the contrary.



Meal Period and Rest Break

The FLSA does not require your employer to provide meal periods or rest breaks for its employees. However, some states do have laws requiring employers to provide rest breaks and/or meal periods for its employees. Such state requirements will prevail over the silence of the FLSA on this subject. In those situations where an employee is subject to both the FLSA and state labor laws, the employee is entitled to the most beneficial provisions of each law.

Additionally, regardless of Federal and state wage laws, many employers do provide breaks and/or meal periods for their employees. Employers commonly provide short breaks for employees anywhere from 5 to 20 minutes. As a general rule of thumb, rest breaks are considered hours worked, while meal periods are generally not considered hours worked (For more informaion on this subject, see your “State” laws found under the “Are You Covered” section located on the upper right-side of this webpage).

Rest Breaks

“Rest periods” of short duration, usually 20 minutes or less, are common in certain industries and are customarily paid for as working time. These short periods must be counted as hours worked. The compensability of rest periods longer than 20 minutes generally depends upon an employee’s freedom from job duties during the breaks.

Be aware that an unauthorized extensions of an employee’s authorized work breaks need not be counted by your employer as hours worked when your employer has expressly and unambiguously communicated to you that the authorized break may only last for a specific length of time and that any extension of the break is contrary to your employer’s rules, and will be punished.

Meal periods

Typically, meal periods of 30 minutes or more generally need not be compensated as work time by your employer, unless—Your employer fails to completely “relieve” you from work duties for purposes of you eating your meals and you are prevented by your employer from leaving your post (i.e., area of work). Employees are not considered “relieved” if they are required to perform any work-related duties while eating.

All work that is performed by an employee voluntarily during meal periods must be counted as compensable working time if the employer knows or has reason to believe that work is being performed.



Waiting Time

Generally, the FLSA requires compensation for all time during which employees are required to wait while on duty or performing their principal activity during work. Generally, if the waiting time “belongs to and is controlled by the employer,” then the employee is “engaged to wait,” and the waiting time is an integral part of the job and therefore compensable. On the other hand, if the employee uses the waiting time for the employee’s own purposes, then the employee is “waiting to be engaged” and such time is not compensable.

Whether waiting time is compensable depends on the particular factual circumstances. Generally, the FLSA requires compensation for all time during which employees are required to wait while on duty or performing their principal activities. For 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.”

Off Duty Waiting Time/Layover Time

Off duty waiting time (or layover time) is a period during which an employee is “waiting to be engaged” and it usually does not constitute hours worked. Off duty waiting time is not hours worked if:

  1. the employee is completely relieved from duty;
  2. the off-duty periods are long enough to enable the employee to use the time effectively for his/her own purposes;
  3. the employee is told in advance that the employee may leave the job; and
  4. is advised of the time that the employee is required to return to work.

On-Call Time

On-call time is time spent by employees, usually off the working premises, in their own pursuits where the employee must remain available to be called back in to work on short notice if the need arises. The FLSA requires employers to compensate their workers for on-call time when such time is spent “predominantly for the employer’s benefit.”

If you are required to remain “on call” while on your employer’s premises you are considered working while on call. Generally, if you are required to remain on call at home, or are allowed to leave a message where you can be reached, you are not considered to be working (in most cases) while on call. Nonetheless, constraints and limitations on your movement and freedom during periods of on-call time could cause such time to be compensable by your employer.

Stand-by Time

Workers required to stand by their posts ready for duty (whether during lunch, during machinery breakdowns or during other temporary work shut-downs) must be paid for this time. Such periods are usually of short duration and their occurrence is not predictable. Because the employee is controlled by the employer during these periods and is not able to use the time for his or her own personal purposes, this time is considered work time under the FLSA. This rule also applies to employees who work away from their employer’s place of business if the employee is controlled by the employer during these periods and is not able to use the time for his or her own personal purposes.

Off-duty time

Off-duty time is periods of time in which the employee is completely relieved of duty and which are long enough to enable the employee to use the time for the employee’s own purposes. If an employee is told in advance that they may leave the job and that the work will not commence until a specified time period, then that employee is off duty. Also, an employee who is not required to remain on company premises but is required to leave word at his home or with company officials where he can be reached is not on call.

Show-up Time/Reporting Time

Sometimes when you arrive for work, at the time your employer directed you to be there, you are sent home before you perform any work. The FLSA does not require your employer to consider any of this time as hours worked or to give you show- up pay. However, some employers and employees have informal or contractual agreements (Collective Bargaining Agreements) which require a set number of hours be considered hours worked. Some states also have such a requirement.

However, if an employee is required to wait 10 to 15 minutes before being advised that no work is available, this waiting time is compensable. In such an instance, the employee is “engaged to wait” rather than “waiting to be engaged”.



Holidays, Vacations, and Sick Time

The FLSA does not require employers to give their employees time off for holidays, vacations, or sick leave (either with or without pay). If your employer allows you to take time off for a holiday, a vacation, or because you are sick, the time off, even though you are paid for the time, is not hours worked and your employer need not paid you for such time nor include such time in your “total hours worked” for overtime purposes.

Your employer is not required to treat any hours you worked on a holiday as double time. The time worked on a holiday is considered “hours worked” just like any other day of the week. Whether or not holidays, vacations or sick time must be granted to you in your particular state is determined under the laws of your state.



Training Programs, Lectures and Meetings

Employee training, lecture or meeting activities are counted as compensable working time, unless the following four criteria are met by your employer:

  1. attendance must occur outside the employee’s regular work hours;
  2. attendance must be voluntary;
  3. the employee must do no productive work while attending; and
  4. the program, lecture or meeting should not be directly related to the employee’s job.

An activity or meeting is directly related to your job if it aids you in handling your present job better, rather than teaching you another job or a new job skill. However, if an employer establishes “for the benefit of his employees a program of instruction which corresponds to courses offered by bona fide institutions of learning”, an employee who attends such a course outside his or her work hours will not be considered to be working during that time, “even if [the courses] are directly related to his job, or paid for by the employer.”



Time Spent Studying or Doing Homework

Time spent doing homework or studying for training generally is regarded as compensable.



Travel Time

Some travel time is specifically excluded from compensable time, such as, all time that is spent “walking, riding or traveling to and from the actual place of performance of the “principal activity” of an employee and time spent in “activities which are preliminary or postliminary” to a worker’s principal activity.

Therefore, travel time at the beginning or end of the workday is not compensable. The general rule is that employees are compensated for all travel unless it is overnight and outside of regular working hours and on a common carrier and where no work is done.

Commute Time

In an ordinary commute (where an employee travels to and from the work site), the employee is not entitled to compensation for such travel time. This is the case even when the employee must travel to different work sites for the job. Generally, an employee is not at work until he or she reaches the work site. But, if an employee is required to report to a meeting place where the employee is required to pick up materials, equipment or other employees, or receives instructions before traveling to the work site, compensable time starts at the meeting.

Travel during the Workday

The general rule of thumb is that time spent by an employee in travel as part of the employer’s principal activity must be counted as hours worked. For instance, if an employee travels from job site to job site during the day or reports to a meeting place to receive instructions or pick up assignments and then travels to the place of work, the employee must be compensated for all of the travel time.

The key to identifying whether travel time during the work day is compensable is determining whether the employees are engaged in travel as part of the employer’s principal activity. If the travel time, before or after the work day, is not for the benefit of the employer or part of the employee’s principal activity, then the travel time need not be compensated.

Out-of-Town Travel

Out-of-town travel time is not ordinary home-to-work travel. Instead, this travel time is performed for the employer’s benefit and at its request. Therefore, it is part of the “principal activity” of the employer, and the employee must be compensated. However, an employer may exclude the travel time between the employee’s home and the airport or railroad station as “home-to-work” travel time.

Overnight travel

Travel time is compensable work time when it occurs during the employee’s regular working hours. This is true whether the employee actually performs work or not, since the employee is simply substituting travel for other work duties. Moreover, if the travel occurs during normal working hours on a non-working days for the employee, the time is still compensable. However, the Department of Labor does not count as working time overnight travel that occurs outside of regular working hours and is spent on an airplane, train, boat, bus or car.

Transportation Furnished by the Employer

Employees are not entitled to compensation for home-to-work travel merely because the employer furnishes the transportation. An employee who chauffeurs other employees to work at the direction of his or her employer, however, is entitled to compensation.



Sleeping Time

Sleeping Time for Less than 24-Hour workday

If an employee’s workday is less than 24 hours, periods during which an employee is permitted to sleep, such sleep time is compensable working time as long as the employee is on duty and must work when required.

Sleeping Time for 24 hours or longer workday

If an employee’s workday is 24 hours or longer, up to eight hours of sleeping time can be excluded from compensable working time if the employer can satisfy the following criteria:

  1. an expressed or implied agreement excluding sleeping time exists between employer and employee;
  2. the employer provides the employee with adequate sleeping facilities for an uninterrupted night’s sleep;
  3. at least five hours of sleep for the employee is possible during the scheduled sleeping periods; and
  4. any interruptions to perform work duties are considered hours worked.

If the sleeping period is longer than eight hours, only eight hours will be credited as non-compensable hours worked. Also, if the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the sleep period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire sleep period must be counted as working time.



Split Shifts and Layover Time

If an employee has time off in the middle of a workday that is long enough to effectively use as he or she wishes, and the employee understands that he or she does not have to return to work until a definite specified time, the employee would not be considered to be working during the time-off period.



Unauthorized Work

Employees who choose to work after their shift is over are engaged in compensable working time as long as the employer “suffers or permits” employees to work on its behalf, proper compensation must be paid to the employee. Once an employer allows the employee to work, or knows that the employee is working, the employee must be compensated: This is true whether the work is being performed at the employer’s place of business or at the employee’s home. Management must make sure that any work it does not want done is not performed by an employee.


Are you covered by the federal wage Law?

For starters, to determine if you maybe covered by the Fair Labor Standard Act, you are encouraged to take the three minute "Step 1: Wage Law Test" found on the upper right-hand side of this webpage.


Does your employer owe you wages?

To determine if your employer may owe you wages under the Fair Labor Standard Act, take the two minute "Step 2: Wage Owed Test" found on the upper right-hand side of this webpage.


Do you believe you have a wage and hour claim?

If you believe that your existing or former employer may have violated your legal rights as an employee by failing to pay you "honest wages for an honest day's work" please feel free to contact the law firm of JonesSatreWeimer for a free consultation (Need a lawyer?).