In this time of high unemployment and layoff, employers are expecting employees to do more in the same amount of time. In this environment it is possible for employers to run afoul of the Fair Labor Standards Act (FLSA), which dictates overtime pay for non-exempt employees.
Number of Hours Worked: Once an employer determines a worker is non-exempt then an employer must be vigilant about the hours an employee works. FLSA overtime kicks in after an employee works 40 hours during a workweek of 7 consecutive days. The workweek must be fixed and employer may not move the days around just to make the 40 hour work week fit, nor may the employer average time, or offer compensatory time in lieu of pay to avoid paying the over-time hours. FLSA is based on hours actually worked, and does not include holiday time or sick time, although an employer’s own policies may override this rule.
There are exceptions to the 40-hour work week rule, however most non-exempt employees are 40-hour work-week employees:
- Medical care providers
- Government police officers, fire fighters, and (some) EMS employees.
For these employees, the FLSA permits (but does not require) alternatives to the standard 40 hour per work week FLSA overtime threshold.
Overtime pay must be based on employee’s actual rate of pay. Overtime must be calculated on the employee’s regular rate of pay which must include a shift differential, longevity pay, or other bonus for which the employee is regularly compensated.
Work-time: Anytime an employee is required to be at the employers premises is work time, even if the employee is on break, or reading a novel waiting for the employers phone to ring.
Off-the-clock hours: Another area of concern for an employer must be the hours actually worked as many employees report working through lunch or during other off-the-clock hours due to self imposed pressure, goals such as meeting project deadlines and supervisory pressure. If an employer knows or should have known an employee was working these off-the-clock hours, then these potential work hours may be eligible for overtime pay-and failure to pay them can lead to a lawsuit.
Even if an employer’s policy requires a supervisor’s permission to work overtime, it is not enough to just say so; the employer must enforce this overtime policy. An employer may not punish violators by refusing to pay them for the extra hours, but the employer can discipline them for such insubordination in other ways—up to termination. Lawsuits over off-the-clock hours are spiking in this recession even as technology increases the number of ways an employee can be working to their employer’s benefit even when they are away from their desks: Cell phones, wireless internet, and blackberries have expanded the ways an employer can reach out to workers even when they are off the employer’s premises.
Other areas where off-the-clock work-time can occur.
- Pre-shift roll call.
- Time spent setting up equipment before the official work can start.
- Time spent dressing in a certain kinds of gear before work can start.
- Time spent cleaning equipment after the close.
- Post-shift work time could also include time spent by an employee performing job-related activities “on the way home.” e.g. a secretary who drops off the day’s mail at the post office or delivers some paperwork to a customer or supplier.
- Employees that take work home.
- An employee contacted at home by telephone for work related reasons
- If an employee is “called back” to work
Meal time, e.g. lunch breaks: The employee must truly be free of work during a non-paid lunch break. If the employee is at their station wolfing down a sandwich monitoring the phones or some other work-related activity, then they are working and should be paid for that time. If an employer requires an employee to be at their station, the employer should pay the employee for that time and include it as part of their regular work day, i.e. instead of arbitrarily deducting an hour from a from a 8 AM-5 PM 8-hour shift, make the shift 9 AM -5 PM instead. Otherwise, the employee must be completely unencumbered of work related activities during an unpaid meal break and the employer must enforce their no-work-off-the-clock-policy vigorously.
Travel-time: Generally the commute to and from work is not considered work-time even if the employee has a longer than usual commute, commutes from a different location, or even if the employee is driving an employer’s vehicle as long as the employee is not doing work for the employer during the commute. If the employee is writing a report for the employer during the commute, then the commute is work time. Time travel during work hours is usually considered work time-once an employee hits a work-site all time spent traveling while on-the-clock is work time. E.g. an employee travels from home to a site to pick up tools and then to the employer’s premises-when the employee arrives at the site where they pick up tools they are on the clock.
Training time: Training time required by the employer or which occurs during the employees regular shift is usually work time. Training time that occurs after normal shift hours AND is truly voluntary (the employer will not penalize the employee in any way) AND which is not required by the employee’s job or does not enhance their skills at their current job (such as training that makes them eligible for a different job) AND during a time in which the employee performs no other work for the employer is not work-time.
Salaried Workers: Just because a worker receives a salary does not mean they are exempt from FLSA. Read my other blog about what distinguishes a salaried exempt employee from a non-exempt salaried employee.
Computing Salaried Workers Overtime can be tricky: Overtime for salaried non-exempt employees is based on their hourly rate for a normal work-week. If a worker is normally paid a salary of $300 for a normal 30-hour work- week then works 40 hours one week, they are entitled to an additional 10 hours of pay at their regular “rate of pay” of $10 an hour, but not overtime as their pay has not exceeded FLSAs 40 hour work-week. On the other hand, if a salaried non-exempt employee is paid $400 for a normal 50-hour work-week, then their rate of pay is $8/hour. If they work 50 hours then they are only entitled to $4 more per hour for hours 41-50 or $440. If a salaried non-exempt worker has a fluctuating schedule then their overtime pay may be calculated differently every week, however payment under this method is rare-many employers settle on a 40-hour per week base pay and compute their overtime from that rate of pay.
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