Thursday, February 13, 2014
and

Presented by:
Brian Dixon
Co-Chair, Wage and Hour Practice Group
Littler Mendelson, P.C.
BDixon@littler.com
415.677.3194

Descriptions of these federal and state laws are summaries and should not be relied upon at face value without considering the text of the statutes and/or speaking with an attorney.

• What is work time?
– Limited general concepts, state variations,
“cookbook” approach under each law
• What pay obligations flow from work time?
– Meal and rest periods
– Days of rest
– Reporting pay, split shift premiums

• The FLSA does not include a definition of “work”

• Employees must be paid for all hours within a workday, from the first principal activity to the last principal activity
• A “principal activity” includes any activity that is an integral and indispensable part of an employee's work
• In general, “work” includes all the time an employee must be on duty, on the employer’s premises, or at any other prescribed place of work

• All work “suffered or permitted” by the employer must be compensated, including:
– Work requested or required by the employer
– Work not requested, but permitted
– Work the employer knows or has reason to believe is being performed – even if not expressly requested

• Work is broadly interpreted to the employee’s benefit
• Employees must be paid from
“whistle to whistle,” with limited exception
• Work includes any time the employee is required, requested, suffered or permitted to work
• It is the duty of management to see that work not required or requested is not performed

• What time did the employee perform the first principal work activity?
• Is the employee performing work remotely?
– Is remote work being captured in timekeeping system?
– Is travel time being captured?
• What time did the employee perform the last principal work activity?
• Is the employee working from home at night?

• Meal & Rest Breaks
• Waiting Time
• On-Call Time
• Training/Meeting Time
• Travel Time
• Pre- and Post-Shift Activities
• Sleep Time
• Grievances, Suggestion Systems and Charitable
Activities

• A meal period may be unpaid if 30 minutes or longer and the employee is completely relieved of duties
• An employer may require an employee to remain at the worksite during a meal or rest break without making the meal period into work time under federal law
• A rest period of 20 minutes or less is compensable work time

• On-call time is compensable if an employee is unable to use the time effectively for his/her own purposes
– Required to stay on or close to the employer’s premises
– Responds to calls frequently
– Short required response time
– Any other limitations on employee’s use of his or her time
– Any practice which limits the burden of being on call
• On-call time is not work merely because the employee is required to carry a pager, cell phone or leave a telephone number where s/he can be reached

• Employees must be paid for time spent
“engaged to be waiting”
• Employees “waiting to be engaged” are not working

• Training/meeting time is compensable work hours unless all four of the following requirements are met:
1. Attendance is outside regular working hours
2. Attendance is voluntary
3. The training/meeting is not job related
4. The employee does not perform any productive work during the training/meeting

• Compensable
– Travel between job sites during the work day
– Travel to another city for special one-day assignments (minus normal commute time)
– Overnight travel during the employee’s normal work hours (on a work or non-work day)
• Not Compensable
– Normal home-to-work commuting, unless employee begins work prior to commuting
– Overnight travel, if outside the employee’s normal work hours (on a work or non-work day)

• Some states laws require all travel time to be paid except the normal commute
• Travel time can be paid at a different lower wage rate (e.g. at the minimum wage), if that rate applies to all travel

• Home-to-work travel in a company vehicle, and any activities “incidental” to such travel is not work time where:
– Use of vehicle is voluntary
– No expense is incurred by employee in use of vehicle
– Vehicle is of a type ordinarily used for commuting
– Work sites are within normal commute distance of employer's office

• Work:
– Booting up and turning off the computer
– Reading emails
– Shift-change conversations
– Donning/doffing
• Not work:
– Commuting
– Walking from the parking lot to the work station
– Waiting to punch a time clock

• Compensable:
– If putting on and taking off clothing or protective gear on the employer’s premises is required by law, the employer, or the nature of the work
– Waiting in line for uniform
– Walking after obtaining the uniform to the place where employees don/doff and to the work station

• Not Compensable:
– If employees are allowed to don/doff clothing at home, but choose to change at work
– If the aggregate time spent donning, walking, waiting and doffing is de minimis

• What is a uniform?
– Defined by state law
– Usually includes any distinctive clothing that an employee would not wear on a non-work day
– Uniform: a shirt with a company logo
– Not a uniform: khaki pants with a blue shirt
• Employees may be working if required to clean or repair a uniform beyond normal washing and drying

• Time spent by an employee preparing suggestions, resolving grievances and participating in charitable activities need not be compensated if:
– Participating in the activity is voluntary, and
– Occurs outside normal working hours

• Sleep time can be excluded from work time only if for employees on duty 24 hours, and the employee:
– Agrees that up to 8 hours of sleep time will not be paid
– Has adequate sleeping facilities
– Is generally able to enjoy an uninterrupted night of sleep
– Is paid for any interruption of sleep time
– Is paid for the entire night if the employee gets less than five hours of sleep
– Up to three, one-hour off-duty meal periods also may be unpaid

• Recorded time is almost always a nice round number (e.g., 9:00 a.m., 5:30 pm)
• Recorded time is almost always the same as the scheduled shift
• Time records show a significant number of missed punches, adjustments to time, or other anomalous entries
• Time punches/entries do not match hours worked shown on payroll records
• Employees observed in the workplace before clocking in, during lunch, or after clocking out

• Rounding increment does not exceed quarter hour
• Rounding operates to the benefit and burden of the employee and the employer
– Schedule corresponds with the rounding increment
– No employer practice undoes rounding
– Round meal periods?

• De minimis amounts of time need not be recorded or paid
• Time may be de minimis based on:
– Amount of time on any single occasion
– Frequency of occurrence
– Administrative difficulty in recording the time
– Total amount of time at issue

• About 25 states require meal breaks
– States with meal break requirements usually require a 30-minute break after 5 or 6 consecutive hours of work
– Some states require that employees be free to leave the worksite
• Less then 10 states require rest breaks
– States with rest break requirements usually require a 10-minute break for each 4 hours of work

• One 30-minute meal period for every five hours of work, unless
– Six hours of work will complete the employee's work for the day and the employee waives the meal period
– Variations by wage order for some initial meal periods and second meal periods
• An on-duty meal period can be used only where:
– The nature of the work truly prevents the employee from being relieved of all duties
– The employee agrees in writing to work through the meal period The meal period is counted and paid as work time

6 -- 1 0
1 0 –– 1
1 16

• Some states require employers to pay an employee for a minimum number of hours if the employee reports to work when no work is available
– Paid at the employee’s regular rate
– Pay the lesser of a minimum number of hours or the scheduled shift
– Requirements vary by state and, within states, can vary by industry

• California – 2 to 4 hours
• Connecticut – 2 or 4 hours in some industries
• Washington, D.C. – 4 hours
• Massachusetts – 3 hours
• New Hampshire – 2 hours
• New Jersey – 1 hour
• New York – 1 to 8 hours, depending on industry, shifts
• Oregon – 1 hour to minors only
• Rhode Island – 3 hours

• Employers may be required to provide extra pay for employees who work a split shift in:
– California
– New York
– Washington D.C.
• Split-shift scheduling is prohibited in Hawaii
• California split-shift premium:
– ((Hours Worked + 1) * MW) – Wages Earned
• New York split-shift premium

• Only New York defines a split shift:
– 10 hour non-work period between shifts
• California, New York and D.C. all require an additional 1 hour of pay at minimum wage, but this requirement is met if:
– Wages Earned > (Hours Worked + 1) * MW
– If test not met, pay the difference

• Half a dozen states have day-of-rest laws
• Many are related to recognizing a Sabbath and may have Constitutional issues
• California – an employer must provide one day’s rest out of every seven

Thursday, February 13, 2014
Brian Dixon
Littler, San Francisco