The best answer to last week's Quick Quiz is, "No", it is not likely that Alan's time between calls would be found to be worktime under the federal Fair Labor Standards Act.

The idle time during which an otherwise off-duty employee is available to be called upon to do something might or might not be compensable FLSA "hours worked", depending upon the situation.  Generally, the question is whether this idle time while "on call" is spent predominantly for the employer's benefit as opposed to the employee's.  The answer usually turns upon the extent to which the employee is able to use the time effectively for personal purposes.

What Are The Important Factors?

The U.S. Labor Department and the courts say that this determination requires an evaluation of all the relevant facts.  Among the things often considered are whether:

♦   The employer requires the employee to remain on the employer's premises;

♦   The employer requires the employee to wait at home for calls or messages or confines the employee to an excessively-restricted geographical area;

♦   The employee receives numerous, frequent, and/or lengthy work assignments during the on-call period;

♦   The employee must respond within a short timeframe under the circumstances (especially if the employee must travel somewhere to do the work);

♦   The employer requires the employee to be on-call frequently, never relieves the employee from on-call status, does not permit the employee to exchange calls or call periods with another worker, or does not allow the employee to turn down at least some calls;

♦   There is an agreement or understanding covering the arrangement (although an employee may not agree to anything that violates the FLSA).

Ordinarily, some combination of restrictive factors is present when idle on-call time is found to be compensable work.

But the time need not be free from any restrictions whatsoever.  For example, courts have found these periods not to be worktime even though the employer required the employee to remain sober and not to take any mind-altering drugs, or to stay well-groomed and appropriately dressed.  Neither is it necessary for the employee to be able to engage in literally any personal activity he or she might wish.

So What About Alan's Situation?

Alan is on-call only for seven days a month, and only for six hours on each on-call day.  He need only phone within 30 minutes after receiving a message, rather than physically report somewhere within that time.  He averages far less than one duty-message per on-call day and spends roughly 5% to 7% of his on-call period performing work.  Although he cannot drink alcohol and must stay in the area, these restrictions standing alone do not mean that he is unable to use the on-call time for a wide variety of personal purposes.  It is probable that a decisionmaker would not see these particular circumstances as causing Alan's idle on-call time to be FLSA "hours worked".

Of course, the predominant-benefit question is necessarily fact-specific.  Therefore, each situation should be separately evaluated.

And Don't Forget . . .

States and other jurisdictions might have "on call" rules that are tougher on employers than the FLSA is.  Employers should look at every applicable wage-hour law to find out whether this is the case.

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Alan is a Help Desk Associate for The Big Corporation.  He is subject to the federal Fair Labor Standards Act's minimum-wage, overtime, and timekeeping requirements.

Alan normally works from 8 a.m. until 4 p.m., Tuesday through Saturday.  Once each calendar month, Alan is on-call between 5 p.m. and 11 p.m. each day for a seven-day period.

He has to call-in within 30 minutes after receiving an e-mail on his cellphone.  While he is on-call, he cannot drink alcoholic beverages, and he cannot leave the metropolitan area in which he lives.  Typically, Alan receives two or three messages in a seven-day on-call period and spends about an hour dealing with each problem that prompted the e-mails he received.  He accurately records all of the time he spends handling those problems, and his employer pays him properly under the FLSA for this worktime.

But what about the remaining time for which Alan is on-call?  Is it likely that his idle time between calls will be deemed to be FLSA "hours worked"?

A recent Time magazine item by Dan Schawbel of Millennial Branding discusses what he sees as a growing trend to abandon the traditional on-premises, 9-to-5 workday in favor of permitting employees to "work odd hours, telecommute and otherwise tweak the usual 9 to 5 grind."  Schawbel says that Generation Y employees (those born between 1982 and 1993) are spearheading this because they prioritize workplace flexibility so highly.  He warns that employers who fail to offer the option to telecommute, to work atypical hours, and to use technology to facilitate alternative work patterns run the risk of turning away a group of prospective workers projected to comprise 75% of the global workforce by 2025.

Be that as it may, it is also essential to take wage-hour compliance into account in deciding how to accommodate this trend.  Under the federal Fair Labor Standards Act alone, thorny issues are presented by employees who spend less worktime on-premises in favor of working at home and elsewhere and at unpredictable times.  Complicating matters is the fact that the FLSA is in many ways an unforgiving creature of a bygone era in which workplace flexibility was largely irrelevant.

As just one illustration, an employer's responsibility to keep an accurate record of non-exempt employees' hours worked has been a challenging task even when the employees report to a single workplace and perform their duties during a normal, fixed-schedule workday.  Employers have now been hit with FLSA claims based upon the additional timekeeping difficulties posed by the advent of helter-skelter, offsite work activities made possible by computers, personal digital assistants, and other remote-access electronics.

The U.S. Labor Department is also following these trends.  We reported last May about DOL's release of a smartphone app designed to help employees "independently track the hours they work and determine the wages they are owed."  This development likely represents an increased threat of claims by tech-savvy employees who work under non-traditional circumstances.

And while employees might favor a flexible approach in the beginning, experience suggests that some will not hesitate to make wage-hour claims later when it behooves them to do so.  Employers cannot count on successfully defending against these claims simply on the basis that the workers agreed to the arrangement, or even that they sought it out.  Neither is it is likely to be a broad-based solution to "make them all exempt."

In the end, employers who move toward letting employees "tweak the 9 to 5 grind" must commit themselves to joining this with effective methods to maintain wage-hour compliance, including measures ensuring that all hours worked by non-exempt employees are accurately recorded.  Moreover, these compliance steps will not be an autopilot proposition; they will always require vigilant, hands-on management.

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Many employers find nowadays that at least some workers are unable to read, write, or do simple arithmetic beyond the lowest levels (if at all).  Management wants to give the employees mandatory training in these areas, but not if that means incurring overtime costs when the instructional time causes the employees' hours worked to exceed 40 in a workweek.  But, under the right circumstances, there is a little-known way to increase employees' basic academic abilities without having to pay FLSA overtime premium for the time they spend learning.

The General FLSA Training Rules

The U.S. Labor Department (DOL) says that time spent in employer training generally must be considered compensable work, unless four criteria are met.  That is, the training time has to be added together with the employee's other hours worked (including for overtime-pay purposes), except where:

♦   The employee's attendance is truly voluntary;

♦   The employee's attendance is outside his or her regular working hours;

♦   The training is not directly related to the employee 's current job; and

♦   The employee performs no productive work during attendance.

29 C.F.R. § 785.27.  Where remedial education is concerned, an employer offering the instruction typically wants to require employees to undergo it.  Also, it is often necessary to schedule the classes at some point during the employee's normal workday.

The Section 7(q) Overtime Exception

The FLSA's Section 7(q) (link to reproduction below) allows the employer to pay for up to ten overtime hours of qualifying instruction at the employee's straight-time regular rate of pay.  In creating this exception, Congress wanted to encourage employers to help provide the fundamental educational background some employees need to succeed in the job market, both now and in the future.  The exception is therefore available for certain basic education offered to employees who lack a high-school diploma or educational attainment at the eighth-grade level.  The training provided cannot be job-specific.

DOL says that the remedial training must be designed to provide reading and other basic skills at an eighth-grade level or below, or to fulfill the requirements for a high-school diploma or a General Educational Development ("G.E.D.") certificate.  29 C.F.R. § 778.603.  Also, DOL rules state that the training has to occur during discrete periods of time set aside for it and must be conducted away from the employee's work station "to the maximum extent practicable".  Id.  DOL regulations require employers to keep accurate records of both an employee's time spent in the remedial education each workday and each workweek and the compensation the employee is paid for this time.  29 C.F.R. § 516.34.

Don't Forget Other Overtime Laws

Of course, the Section 7(q) exception does not override overtime obligations imposed by any different federal law or by any other jurisdiction's requirements.  An employer considering a remedial-training program designed around Section 7(q) should carefully evaluate whether the program will meet the requirements of all other applicable overtime provisions.

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 FLSA Section 7q.pdf (14.69 kb)

The answer to our September 23 Quick Quiz is, "None of it".

The relevant question under the federal Fair Labor Standards Act gets down to whether Ellen was "engaged to wait" (which is compensable worktime) or was "waiting to be engaged" (which is not).  There is not always an obvious answer to whether this kind of time is or is not compensable work under the FLSA.  As the U.S. Labor Department puts it, "Whether waiting time is time worked under the [FLSA] depends upon [the] particular circumstances."  29 C.F.R. § 785.14.

The Labor Department says that an employee is often "engaged to wait" even during periods of inactivity when he or she can leave the premises, because these periods of time are typically unpredictable and of short duration and do not permit the person to use the time effectively for his or her own purposes.  According to the Labor Department, in these situations, the waiting periods are an integral part of the job so as to be compensable worktime.  See, e.g., 29 C.F.R. § 785.15.

On the other hand, the Labor Department has also said that an employee's waiting time might not be hours worked in situations in which the employee:

◊   Is completely relieved of all duties and responsibilities;

◊   Is told in advance that he or she is permitted to leave the job;

◊   Is told in advance that work will not resume until a specified time; and

◊   Has a long-enough time to use the period effectively for his or her own purposes.

See, e.g., 29 C.F.R. § 785.16.(a).  Once again, though, whether the amount of time involved is of a sufficient length "depends upon all the facts and circumstances .  .  .."  Id.

In our hypothetical scenario, the best answer is that Ellen is "waiting to be engaged" between 8:45 p.m. Sunday and 7 a.m. Monday.  She has no duties or responsibilities during that period; she performs no work during that time; she knows she is not required to be at the booth until 7 a.m. on Monday; and clearly the period is long enough for her to use it for her own, personal purposes.  The fact that she is out-of-town is not enough in itself to cause that period of time to count as FLSA "hours worked".

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Ellen is a non-exempt employee who works in Bigtown for The Acme Corporation.  She is assigned to hand-out brochures at TAC's booth at a tradeshow at a hotel in Salestown on Monday.  She will stay in the same hotel where the show will be held.  Her instructions are that she has to be at the booth location beginning at 7 a.m. on Monday, when she will help set up the booth.

She arrives at the Salestown hotel on Sunday night at 8:45 p.m.  She immediately goes to dinner until 10:15 p.m.  She then returns to her hotel room, reads a novel for a while, and goes to sleep.

She wakes up at 6 a.m., goes through her normal "get ready" routine, eats a quick breakfast downstairs, and reports to the booth location at exactly 7 a.m.

Under the federal Fair Labor Standards Act, how much of Ellen's time between 8:45 p.m. Sunday and 7 a.m. Monday is worktime?

Please use the poll buttons to the right to register your answer.

Affected employers will no doubt have a variety of wage-hour questions in the aftermath of Hurricane Irene.  The number and scope of the issues raised might well be practically endless.  In this post, we address in very general ways the federal Fair Labor Standards Act topics that experience suggests will be among the most-pressing.

◊   What do we do about lost time records for work already performed but not yet paid?

If the only records of hours worked are lost or unusable, then there is no perfect solution.  Re-create the most accurate accounting you can under the circumstances.  Perhaps the preferred approach is to ask each employee to make the best-possible estimate of his or her hours worked. You should obtain the employee's written acknowledgement of his or her best recollection and should include the employee's authorization allowing later corrections in worktime and pay should more accurate hours-worked information become available.

◊   How do we track employees' worktime without our electronic/computerized time clocks?

Employees may record all hours worked by using handwritten timesheets.  To ensure accuracy, each employee should enter his or her own time and should record the actual times when the employee's work starts and stops each workday.

◊   As we recover, must we keep paying overtime on top of our other burdens?

At this time, there is no FLSA "emergency" exception that relieves the obligation to pay FLSA-required wages.  Employees subject to the FLSA's overtime provision must receive overtime premium at a rate of at least 1.5 times their regular rates of pay for all hours worked over 40 in the designated seven-day workweek.

If employees are covered by a collective bargaining agreement, it might contain additional overtime provisions requiring more than the FLSA does.  Perhaps the terms of the agreement relax those requirements in emergencies.  However, a collective bargaining agreement cannot override the FLSA's requirements.

◊   Can an employee volunteer to perform recovery services for us without pay?

The FLSA does not permit employees to "volunteer" unpaid time to the employer under any but the narrowest of circumstances.  For example, if a manufacturing facility sets up a hotline or makes other arrangements to provide a clearinghouse for information about the status of the workplace and employee reporting times, non-exempt employees volunteering to perform such services are engaged in compensable hours worked for FLSA purposes.  Employers considering any kind of unpaid "volunteer" services by their employees should evaluate the legality of doing this carefully and in advance.

◊   Must we keep paying employees who are not working?

Under the FLSA, for the most part the answer is "no".  FLSA minimum-wage and overtime requirements attach to hours worked, so employees who are not working are typically not entitled to the wages the FLSA requires.

One possible FLSA-related exception is for employees treated as FLSA-exempt whose exempt status requires that they be paid on a "salary basis".  Generally speaking, if such an employee performs at least some work in the designated seven-day workweek, the "salary basis" rules require that he or she be paid the entire salary for that particular workweek.  There can be exceptions here, too, such as might sometimes be the case where the employer is open for business but the employee decides to stay home for the day.

Also, non-exempt employees paid on a "fluctuating-workweek" basis under the FLSA normally must be paid their full fluctuating-workweek salaries for every workweek in which they perform any work.  There are a few exceptions, but these are even more-limited than the ones for exempt "salary basis" employees.

Of course, an employer might have a legal obligation to keep paying employees because of, for instance, an employment contract, a collective bargaining contract, or some policy or practice that is enforceable as a contract or under a state wage law.

◊   What can we do about charging missed time to vacation and leave balances?

The FLSA generally does not regulate the accumulation and use of vacation and leave.  The "salary basis" requirements for certain FLSA-exempt employees can implicate time-off allotments under various circumstances, some guidance on which the U.S. Labor Department has provided in opinion letters accessible here and here.

Again, however, what an employer may, must, or cannot do where paid leave is concerned might be affected by an employment contract, a collective bargaining contract, or some policy or practice that is enforceable as a contract or under a state wage law.

◊   When is travel time "hours worked" for purposes of computing FLSA wages due?

FLSA travel-time "rules" are not seamless, up-to-date, or necessarily logical or consistent with common sense.  The best-known ones are that:

•   Normal commuting between home and work typically is not considered to be hours worked, and

•   Travel between one assignment and another during a workday typically is hours worked.

However, even these principles are subject to exceptions and elaboration.  The best starting point is to consider each scenario an employer faces under the U.S. Labor Department's basic interpretations on travel time.  They are compiled at 29 C.F.R. §§ 785.33-785.41 and may be accessed here.

________________

Remember that other requirements, such as those applying to government contractors or subcontractors and those of states or other jurisdictions, can also be relevant to these questions.

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Our earlier post about the U.S. Labor Department's position on unauthorized extensions of rest breaks has generated additional comments and questions.   We have responded to one comment at length beneath the post itself.

Another reader took the Labor Department's interpretation to mean that, if an employee impermissibly extends his or her rest break, then the whole rest break could be treated as non-compensable time under the federal Fair Labor Standards Act.  In that reader's view, for example, if an employee stretches a ten-minute rest break to 20 minutes, then the full 20-minute period could be excluded from worktime, rather than only the additional ten minutes.

The Labor Department has said that this is not the case.  In Opinion Letter of Wage-Hour Acting Administrator FLSA2001-16 (May 19, 2001), an employer asked the U.S. Wage and Hour Division whether an employee's unauthorized extension of a rest break under the conditions in Section 31a01(c), Field Operations Handbook (U.S. Labor Department, December 15, 2000), allowed the exclusion of the entire rest break from compensable time.  According to the Acting Administrator, "[o]nly the length of the unauthorized extension of an authorized break will not be considered hours worked when the three conditions are met, not the entire break."  In our illustration, then, the Labor Department would say that only the additional ten minutes could be treated as non-compensable time.

It also appears that some readers were not distinguishing among different kinds of breaks.  For purposes of what is and is not FLSA worktime under Labor Department interpretations, it can be useful to view scheduled breaks as falling into essentially three categories:

◊   Bona fide meal breaks, which are typically noncompensable time (29 C.F.R. § 785.19);

◊   "Short" rest breaks of "about 20 minutes" or less, which the Labor Department says are typically compensable time (29 C.F.R. § 785.18); and

◊   Break periods which are neither meal breaks nor "short" rest breaks, which might or might not be compensable time  (Section 31a01(b), Field Operations Handbook (U.S. Labor Department, December 15, 2000), link to reproduction below).

Employers should evaluate these categories differently in deciding whether and to what extent to treat them as being compensable hours worked under the FLSA.

And once again, employers must also be aware of and comply with whatever are the applicable break obligations of a state or another jurisdiction.

FOH 31a01b 12 15 00.pdf (34.71 kb)

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Acme Corporation's longstanding policy is to give non-exempt employees two 10-minute rest breaks each workday.  It treats these breaks as paid worktime.  Management recently realized that, over the years, most of the employees have gradually come to be spending 15 to 20 minutes or even a little longer on each break.  Acme sent out a memo reminding everyone that the breaks are limited to 10 minutes, but it had no effect.  Could Acme start considering the over-10-minute extensions to be unpaid time?

The U.S. Labor Department has said that this is permitted under the federal Fair Labor Standards Act, if an employer makes its intentions clear in advance.

The FLSA does not require employers to give rest breaks (which should be distinguished from lactation breaks, which are required).  Many employers do give rest breaks, of course, and the Labor Department's position is that short periods like this (typically running from five to about 20 minutes) count as worktime for employees who are subject to the FLSA's minimum-wage and/or overtime requirements.  In the Labor Department's view, such breaks mainly have the effect of promoting employee efficiency, so they cannot be deducted from or offset against other compensable time.

Consequently, many employers assume that, when an employee stretches a ten-minute break to 20 minutes, the FLSA does not allow the additional ten minutes to be treated as non-compensable time.  On the contrary, the Labor Department's internal enforcement manual takes the position that unauthorized break extensions need not be considered worktime, so long as the employer has expressly and unambiguously told employees that:

◊   Authorized breaks may last only for a specific length of time;

◊   Any extension of those breaks is against the rules; and

◊   Any extension of those breaks will be punished.

Section 31a01(c), Field Operations Handbook (U.S. Labor Department, December 15, 2000)(link to reproduction below).

Any employer looking to rely upon this position in the future would be well-advised to adopt a written break policy that includes these points and makes clear that unauthorized extensions will not be counted as worktime.  It should also be able to show that employees are aware of the policy.

Remember that many states impose rest-break rules of their own.  Employers must also be aware of and comply with whatever the applicable obligations are.  A state need not follow FLSA interpretations with respect to breaks, including as to whether unauthorized extensions of breaks are or are not to be counted as worktime under the state's own break requirements or under its other laws relating to hours worked.

 FOH 31a01 12 15 00.pdf (27.36 kb)

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We previously reported on DOL's publication of a "Work Hours Calendar", a timesheet for employees to use to keep a private record of each workday’s arrival, start, stop, and departure times, along with other information.  In related comments, DOL told employees that "it is recommended that you keep your own records of all the hours you work and your pay."

In a news release this week, DOL cites that publication and goes a step further by announcing the launch of DOL's "first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed."  The free app is currently compatible with the iPhone and the iPod Touch.  DOL will explore making it available on other smartphone platforms.

Describing the new phone app, DOL's news release says:  "[U]sers conveniently can track regular work hours, break time and any overtime hours for one or more employers. This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records."  (emphasis added).

According to reports, DOL has stated:  "The app also will enable users to add comments to the information; view a summary of their work hours in a daily, weekly, and monthly format; and e-mail the summary of work hours and gross pay as an attachment."  The "DOL-Timesheet" app allows employees to keep their own time records and e-mail themselves reports that they can print from their computer.  It also offers one-tap e-mail access to DOL and a link to regional DOL offices.

Once again, DOL is encouraging employees to keep what amounts to a separate set of books.  There is great potential here for needless mistakes or misunderstandings, or even for outright mischief on the part of some.  For example, most employees have no expertise in what is and is not FLSA worktime, and it is likely that "conventional wisdom" will lead many to record time in this app that does not count as compensable FLSA "hours worked".

As we noted in our previous post, employers are well-advised to be sure they can demonstrate that their records are the best accounts of all facts relevant to compliance with the FLSA and similar laws.  Among other things, employers should consider communicating explicitly to employees and managers the importance of accuracy in the employer's time records; requiring employees to report any hours-worked questions, discrepancies, or disagreements immediately; reviewing company time records on a regular basis for accuracy; correcting mistakes in the time records (with the employee's acknowledgement of the correction); and other measures designed to make the employer's records accurate and the most credible version that exists. 

Of course, employers must also educate themselves on what time must be counted as "hours worked"under the FLSA (including, but not limited to, compensable travel time) so that all such time is properly captured in the employer's records.

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