When a work pay period begins and ends is determined by a law called the Portal-to-Portal Pay Act. (29 U.S.C. § 251.) This amendment to the FLSA and several other workplace laws requires that an employee must be paid for any time spent that is controlled by and that benefits the employer.
This aspect of wage and hour law has generated a tremendous number of clashes—and cases in which the courts have attempted to sharpen the definition of payable time.
Worktime for which you must be paid includes all the time you must be on duty or at the workplace. However, the courts have ruled that on-the-job time does not include the time employees spend washing themselves or changing clothes before or after work, unless a workplace requires specialized uniforms or other garb that is impractical to don off the premises, nor does it include time spent in a regular commute to the workplace.
Employers are not allowed to circumvent the Portal-to-Portal Pay Act by simply “allowing” you to work on what is depicted as your own time. You must be paid for all the time you work—voluntary or not. This issue has come up frequently in recent years because some career counselors have been advising people that volunteering to work free for a company for a month or so is a good way to find a new job. Although working for free may be legal in situations where the job being sought is exempt from the FLSA—for example, a professional fundraising position with a nonprofit organization—it is not legal when the job involved is governed by the Act. (See Section A2, above, for details on FLSA exemptions.)
For ease of accounting, employers are allowed to round off records of worktime to the nearest five-minute mark on the clock or the nearest quarter hour. But rounding off becomes illegal if it means employees will get paid for less time than they actually worked. In practice, this means that your employer will usually round your worktime up to add a few minutes each day to the time for which you are paid.
In calculating on-the-job time, most concerns focus on how to deal with specific questionable situations, such as travel time, time spent at seminars, meal and coffee breaks, waiting periods, on-call periods, and sleeping on the job.
1. Travel Time
The time you spend commuting between your home and the place you normally work is not considered to be on-the-job time for which you must be paid. But it may be payable time if the commute is actually part of the job.
If you are a lumberjack, for example, and you have to check in at your employer’s office, pick up a chainsaw, and then drive ten miles to reach the cutting site for a particular day, your workday legally begins when you check in at the office.
Even if the commute is not part of your job, circumstances may allow you to collect for the odd trip back and forth. You can claim that you should be paid for your time in commuting only when you are required to go to and from your normal worksite at odd hours in emergency situations.
2. Lectures, Meetings, and Training Seminars
Generally, if you are a nonexempt employee and your employer requires you to attend a lecture, meeting, or training seminar, you must be paid for that time—including travel time if the meeting is away from the worksite.
The specific exception to this rule is that you need not be paid if all of the following are true:
3. Meal and Break Periods
Contrary to the laws of gastronomy, federal law does not require that you be allotted or paid for breaks to eat meals.
However, many states have laws specifically requiring that employees be allowed a half hour or so in meal and rest breaks during each workday. (See the chart below.) Your employer generally does not have to pay you for meal breaks of 30 minutes or more—as long as you are completely relieved of work duties during that time. Technically, however, if your employer either requires that you work while eating—or allows you to do so—you must be paid for time spent during meals. Also, you must be paid for break periods that are less than 20 minutes.
4. Waiting Periods
Time periods when employees are not actually working but are required to stay on the employer’s premises or at some other designated spot while waiting for a work assignment are covered as part of payable time. For example, a driver for a private ambulance service who is required to sit in the ambulance garage waiting for calls must be paid for the waiting time.
5. On-Call Periods
A growing number of employers are paying on-call premiums—or sleeper pay—to workers who agree to be available to be reached outside regular worktime and respond by phone or computer within a certain period. Some plans pay an hourly rate for the time spent on-call; some pay a flat rate.
If your employer requires you to be on call but does not require you to stay on the company’s premises, then the following two rules generally apply:
Questions of pay for on-call hours have become stickier—and more common—as a burgeoning number of technological gadgets such as cell phones, pagers, and mobile email trumpet that they can keep their owners in touch 24/7 and as more employees opt for more flexible arrangements that allow them to work out of the office.
In cases of close calls as to whether on-call time is worktime that must be compensated, courts will often perform a balancing act, weighing:
6. Sleep Time
If you are required to be on duty at your place of employment for less than 24 hours at a time, the U.S. Labor Department allows you to count as payable any time that you are allowed to sleep during your shift of duty. If you are required to be at work for more than 24 hours at a time—for example, if you work as a live-in housekeeper—you and your employer may agree to exclude up to eight hours per day from your payable time as sleep and meal periods.
However, if the conditions are such that you cannot get at least five hours of sleep during your eight-hour sleep-and-eat period, or if you end up working during that period, then those eight hours revert to being payable time.
