3 FLSA Challenges: Off-Clock, Travel time, ‘Independent’ Contractors

Note: Find the complete Littler Report here.

Compensable Work Outside of Patient Care Duties

Some preshift or postshift activities may be compensable, the Littler Report says, if they are “an integral and indispensable part of the principal activities.”

For example, the Littler Report says, in the home healthcare context, while patient care activities would be considered “principal” activities, compensable work would generally also include:

• Paperwork or charting that is required or necessary for the job
• Work-related phone calls or other communications with supervisors
• Mandatory meetings
• Training that is required by the employer, attended during work hours, or directly related to the job

To minimize the risk of claims for uncompensated or “off-the-clock” work, the Littler Report recommends that employers consider implementing policies and timekeeping systems that require all work time to be recorded and informing employees that they may be subject to discipline for failure to follow these policies.

Travel Time

Employers generally need not pay for travel between the employee’s home and the first jobsite at the start of the day, or travel between the last jobsite and the employee’s home at the end of the day, says the Littler Report; however, travel time between jobsites or patient homes generally is compensable.

In addition, if an employee performs work activities at home, such as paperwork or scheduling activities, home-to-work travel time may become compensable by operation of the “continuous workday” rule.

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Independent Contractors

In addition to the issue of whether home healthcare workers are classified as exempt or nonexempt employees, in some situations there may be a dispute as to whether home healthcare workers are properly classified as employees at all, the Littler Report says.

This is a significant issue because only employees are subject to the Fair Labor Standards Act (FLSA) and its regulations governing minimum wage and overtime pay.

To determine contractor status, courts look at a variety of factors that generally include the following, says the Littler Report:

• Degree of control exercised by the alleged employer
• Extent of the worker’s investment in equipment and tools used in the performance of the job
• Worker’s opportunity for profit or loss
• Skill and initiative required in performing the job
• Permanency of the relationship
• Extent to which the work is an integral part of the employer’s business

In their evaluations, courts generally disregard how the parties have agreed to characterize the relationship and focus instead on factors above, says the Littler Report.

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