What effect does your employees’ use of PDA’s have on wage and hour issues? Are you “suffering and permitting” when they respond to calls after hours? Is any time ever “de minimis?” Attorney Laura Innes tackles these questions and makes some recommendations for 2011.
Compensable “hours worked” is all the time during which an employee is suffered or permitted to work for the employer, whether or not required to do so, and when the employee is under the control of the employer, says Innes. But what about insignificant time periods?
Innes, a shareholder in the South San Francisco law firm of Simpson, Garrity, Innes & Jacuzzi PC, made her remarks at BLR®‘s recent National Employment Law Update in Las Vegas.
In recording working time, Innes says, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are de minimis. This rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial realities.
Yay! PDA Time Is De Minimis … but wait
An employer may not rely on this policy to arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.
Innes notes that cases held that working time amounting to $1 of additional compensation a week is “not a trivial matter to a workingman,” and was not de minimis;another case held that “[T]o disregard workweeks for which less than a dollar is due will produce capricious and unfair results;” and still another case held that 10 minutes a day is not de minimis.
If we require employees to use PDA’s does that make their time “on call?” That depends on whether the “standby time” is controlled or uncontrolled, Innes says.
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For example, in the case Rutti v. Lojack, Rutti asserted that Lojack required technicians to be “on call” from 8:00 a.m. until 6:00 p.m. Monday through Friday, and from 8:00 a.m. until 5:00 p.m. on Saturdays. During this time, the technicians were required to keep their mobile phones on and answer requests from dispatch to perform additional jobs, but they were permitted to decline the jobs.
The 9th Circuit Court rejected the plaintiffs’ claims that the on-call time constituted hours worked, holding that the proper test “is not the importance of on-call work to the employer, rather the test is focused on the employee and whether he is so restricted during on-call hours as to be effectively engaged to wait.”
In this case the control was not such that the employee could not use the time effectively for personal pursuits.
What to do for 2011?
Create an appropriate policy now to cover the situation above. It makes sense to require an employee to log any actual time worked to respond to emails or to attend a web conference. Clarify that employees need not respond to email after hours.
Another idea may be to put a special phrase in the email subject line, such as "READ NOW," for any message that should be read during "off-hours" time, while the rest can wait until regular business hours. Whatever you do, the policy should be clear.
In addition, says Innes:
- Audit exemption classifications in your company.
- Review recordkeeping systems to ensure they meet the requirements. Consider ways you can keep time records for any “close call” exemption.
- Review work systems/processes for hours worked issues (travel, preliminary/postliminary time, pda/cell phone use off duty, etc.)
- Look at compensation policies/practices (pay stubs, expense reimbursement, rounding, etc.)
Wage and hour—a hassle for every employer, but it’s even worse for multi-state employers. One thing is for sure, no two states are the same. We asked our editors what they recommend and they came back with the Quick Guide to Employment Law.
For each of the150 HR-related topics the Quick Guide covers, such as wage/hour, employee rights, discrimination, workers’ comp, or affirmative action, the book creates a simple grid.
The topics run across the top, the states along the side. Thus, each grid box provides a short summary of the requirements in that state. Looking at the grid, you literally have a snapshot of what every state, plus D.C., requires on each topic, all at the turn of a page.
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Take as one example the “simple” matter of employee records retention. States vary widely in how many years you are required to hold records, and some even have variances within their own laws.
Here are some of the differences, as charted by BLR’s Quick Guide to Employment Law for basic payroll records only.
Years Required to hold employee records:
1 Year: Louisiana, Utah
2 Years: California, Colorado, Idaho, Massachusetts, Nevada, Oregon, West Virginia, Wyoming
3 Years: Alaska, Arkansas, Connecticut, Delaware, D.C., Illinois, Iowa, Kansas, Maine, Maryland, Michigan, Minnesota, Missouri, New Mexico, New York, North Carolina, Ohio, Rhode Island, South Carolina, Texas, Washington State, Wisconsin
4 Years: Arizona, Georgia, Nebraska, New Hampshire, North Dakota, Oklahoma, Pennsylvania, South Dakota, Virginia
5 Years: Alabama, Florida
6 Years: Hawaii, Kentucky, New Jersey
*Indiana, Mississippi, Montana, Tennessee, and Vermont specify a retention period “sufficient to administer employment law” or similar language.
Note: Federal law requires payroll records retention for 3 years.
The only way we were able to compare these differences efficiently was with the unique layout of the Quick Guide to Employment Law.
Bonus! For a limited time, we’ll send you the hot-off-the-presses special report Top 10 Best Practices in HR Management for 2011 just for examining the Quick Guide!
Links below let you examine the Quick Guide’s unique page layout and also sample the newsletter. If you’ve got any concern at all about making sure you’re complying with all relevant law—in every state—we suggest you take a look.
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