Under the federal Fair Labor Standards Act (“FLSA”), nonexempt employees are entitled to minimum wage and overtime for all hours worked over 40 hours a work week. For great information on classifying employees as exempt or nonexempt, please refer to our July Employment Law Corner (and consider sharing it with managers and supervisors). The problem is, “hours worked” is not defined in the FLSA. According to Department of Labor (DOL) guidance, any work requested, suffered, or permitted to be performed is work time that must be paid for by the employer. Suffered? No wonder there are so many questions…
Common Working Hour Issues
Rest and Meal Periods
Would you be surprised to learn that the federal law does not require that employers provide rest or meal periods? Be aware though that many states do require rest or meal periods or both be provided. Here is how it works:
· If an employer does provide rest or meal periods, breaks of 20 minutes or less must be paid as working time.
· Meal breaks which generally last 30 minutes or more would not need to be compensated as work time.
· Employers need to be cautious and ensure that their employees are completely relieved from duty while on their meal breaks.
· If an employee performs any duties while on the meal break, whether active or inactive, then the employee must be compensated for that time. Managers need to know and enforce this at every level.
Ordinary “home to work travel” is not compensable time. Home to work travel includes commuting time an employee spends before and after work to and from their home. There are instances when travel time may be compensable if it is outside “home to work travel.” Surprisingly, time spent traveling as a passenger on an airplane, train, boat, bus, or automobile is not automatically paid time.
Three ways the DOL states an employee could be paid for travel time include:
1) Home to Work on a Special One Day Assignment in Another City,
2) Travel that is All in a Day’s Work, and
3) Travel Away from Home Community.
If an employee regularly works at one fixed location in a city and is given a “special one day assignment in another city” and then returns home the same day, then the time spent traveling to and returning from the city is work time. The employer may deduct from this payment the time an employee generally spends commuting to and from the regular work site.
Another example of compensable time includes “travel that is all in a day’s work” or, in other words, time spent by an employee traveling as part of their principal activity. This might be travel from one job site to another job site throughout the workday.
Finally, “travel away from home” includes the time an employee spends traveling elsewhere to stay for a period overnight. The time traveling should be compensated when the travel time occurs during the employee’s regular working hours on workdays and during those same corresponding hours during nonworking days. For example, if an employee works 9 am – 5 pm Monday through Friday, then they would be compensated for the time they are traveling during those hours and for the time they are traveling between 9 am – 5pm on Saturday and Sunday.
What happens if you fail to follow the FLSA?
It can be very costly. An employee may file a private suit to recover back wages, liquidated damages, plus attorney’s fees and court costs. The DOL may also file suit on behalf of an employee(s) for back wages, liquidated damages, and civil money penalties where appropriate. Any employers who have willfully violated the law may be subject to criminal penalties, including fines and imprisonment.
We can help. Want an easy fixed fee way to ensure you are complying with all federal wage, hour & timekeeping laws? Check out our FLSA Wage, Hour & Timekeeping Audit and Exempt or Non-Exempt Service. Questions? Contact us.
Attorney Julia Pomella-Griggs, who drafted this post, will be creating short lessons to come. Keep reading–and share with people you know who could use a quick workplace compliance lesson.