What is work? How the FLSA defines it

January 25, 2011
in Employment Law

It seems like a simple question: What constitutes work for which employers must pay?

Yet year in and year out, managers struggle with tricky issues such as when and how (and how much) to pay when workers are on call, commuting, traveling or receiving training.

The task gets more daunting when you consider the fact that the FLSA is one of those federal laws that allow you to be personally sued for failing to pay overtime. To get to the bottom of these questions, let’s get the answers straight from the experts at the U.S. Department of Labor’s Wage and Hour Division.
Exempt or Nonexempt? How to Make the Call and Avoid FLSA Overtime Lawsuits
Here’s how the Fair Labor Standards Act defines unusual work scenarios for payroll purposes:

On-call time. Employees required to remain on call on the employer’s premises are considered working while on call. Employees required to remain on call at home (or who can leave a message where they can be reached) are considered not working (in most cases) while on call.

Waiting time.
Employees are paid for waiting time when they are “engaged to wait.” Employees fall under that definition if they’re required to be at a work site waiting to perform work.

Rest and meal periods.
You typically must pay employees for short rest periods, usually 20 minutes or less. You generally don’t need to pay employees for bona fide meal periods (typically 30 minutes or more). Employees must be completely relieved from duty during unpaid breaks and meal periods. Example: If you require your assistant to eat lunch at her desk in case a call comes in, she must be paid because she hasn’t been fully relieved of her duties. (Some states require paid breaks.)
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Sleeping time. Employees required to be on duty for less than 24 hours are considered “working,” even if they’re permitted to sleep. Employees required to be on duty for 24 hours or more may agree with their employer to exclude from hours worked any scheduled sleeping periods of eight hours or less.

Training programs and meetings.
You don’t have to pay employees for time spent at training programs, lectures or similar activities as long as they meet the following four criteria: 1. The event is outside normal hours; 2. it’s voluntary; 3. it’s not job-related; 4. no work is performed during that time.

Travel time.
Labor Department rules clearly say home-to-work commuting isn’t counted as paid time. In addition Labor rules cover:
  • Day trips to another city. Time spent traveling to and returning from the other city is work time. You can exclude the employee’s regular commuting time.

  • “All in a day’s work” travel. Travel time spent by employees as part of their principal activity, such as travel among job sites during the workday, is considered “work time” and must be paid.

  • Overnight travel away from home. Travel away from home is considered “work time” when it cuts across the employee’s workday. That’s true not only on regular working days during normal working hours, but also on nonworking days. Also, you don’t have to pay employees for time spent in travel away from home outside of regular working hours while they’re passengers on a plane, train, boat, bus or automobile.

Adapted from U.S. Labor Department Fact Sheet No. 22.

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