HR Management & Compliance

Ask the Expert: Can We Require Employees to Be at Work Early?

Question: Can we require employees to be at work 15 minutes prior to their normal scheduled start time to ensure they are at and prepared to work when scheduled, while also avoid paying overtime?

working time

Answer:  If you require nonexempt employees to be a work 15 minutes prior to their scheduled start time, you likely should pay them for those additional 15 minutes.  Under the Fair Labor Standards Act (FLSA), nonexempt employees must be paid for all hours actually worked and also be paid overtime for all hours worked over 40 in a single workweek.  See 29 U.S.C. sec. 207.

According to the FLSA regulations, working hours that must be paid include all time during which an employee is engaged in physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and its business.  In addition, the workweek ordinarily includes “all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” See 29 C.F.R. sec. 785.7.

Further, the FLSA regulations also consider waiting time to be paid working time if:  (1) it predominantly benefits the employer or is requested or required by the employer; and (2) employees are unable to effectively use the time for their own purposes.  See 29 C.F.R. secs. 785.14 and 785.15.

So, if you specifically require your nonexempt employees to be at work 15 minutes prior to their start time, that time likely is considered working time under the FLSA, and you should pay them for that time spent waiting to begin work.  And, if that extra 15 minutes per day causes the nonexempt employees to work more than 40 hours in a workweek, you will have to pay the employees overtime as a result.

As an alternative to requiring the employees to arrive 15 minutes early, you can treat this issue under your normal attendance and punctuality policies.  Thus, you can require that nonexempt employees be at work and ready to begin work at the scheduled start time and remind them that they will be disciplined if they do not do so.