Question: Can we ask a new hourly employee to complete paperwork in advance of orientation (W-4, Direct Deposit form, etc.) and not pay them for that time? What about if employees complete annual enrollment benefit paperwork at home on their own time? Or logging in to a time and attendance software system remotely to request time off or approve a time sheet? Is there any law that says these type of administrative tasks or activities must be paid?
Answer from the experts at HR.BLR.com:
Thank you for your inquiry regarding compensation to newly hired staff for completion of required new hire paperwork, benefits enrollment, and other similar administrative tasks undertaken prior to hire or otherwise outside of work hours and premises.
The federal Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees for all hours “suffered or permitted” to work. Thus, at its most basic reading, if the employer requires the employee to complete paperwork or administrative tasks prior to orientation or otherwise outside of standard work hours, then that time should be paid.
Alternatively, if you provide the paperwork such that the employee may voluntarily fill out the paperwork prior to the first day (but you make it clear that he or she can wait to complete it at work), then you could argue that time spent voluntarily completing onboarding and enrollment paperwork prior to/outside of work need not be paid.
However, for this argument to hold up, it is important that employees truly have a choice to complete the paperwork at work (in which case it may simply be preferable to have the onboarding process occur during paid work hours anyway).
In addition, and particularly relating to administrative tasks such as submitting requests for time off, note that the FLSA does hold that “infrequent and insignificant periods of time beyond the scheduled working hours, which cannot as a practical matter be precisely recorded for payroll purposes, may be disregarded.”
Note that this rule only applies where there are uncertain and indefinite periods of time involved—a few seconds or minutes—and where failure to count such time is justified by industrial realities. So a few minutes of time spent reviewing and signing a benefits enrollment document once per year may be considered de minimis and could be disregarded.
However, the DOL provides further guidance that an employer must count as hours worked any part, however small, of an employee’s fixed or regular working time or identifiable periods of time the employee is regularly required to spend on assigned duties.
Therefore, whether an employee should be paid for tasks such as submitting a timesheet or time off request outside of work hours will also depend on the facts of the situation—does the task require more than a few seconds or minutes to complete?
Is it, as may be the case for submitting a timesheet for approval, time the employee is “regularly required” to spend on the task, or is it something that arises only occasionally? Is the time spent on the task uncertain and difficult to account for, or is it well-documented by the timestamps of the payroll and attendance system?
With these factors in mind, note that the most prudent course of action to help prevent potential wage claims (and to ensure positive employee relations) is to pay for any time spent completing the onboarding process or other similar administrative and enrollment tasks outside of work. If, based on the individual circumstance, you opt not to pay for the time, we do recommend consultation with an attorney to review the situation and identify any potential risks.