Under the Fair Labor Standards Act (FLSA), employers must pay employees at least the minimum wage for all hours worked. This sounds simple enough. But what does “hours worked” mean in this context? Does it mean just the hours that the employee is scheduled? What about time spent on call? What about break time? What about time the employer didn’t know the employee was working?
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These are all valid questions. Let’s take a closer look at what “hours worked” means under the FLSA and how it has been defined.
[Right here we should stop and note that these discussions are relevant only for employees who are nonexempt and thus subject to the FLSA minimum wage and overtime regulations. For those who are exempt from overtime pay, the number of hours worked is less critical since a component of the exempt status is that the employee is paid on a salaried basis.]
What Does ‘Hours Worked’ Mean?
According to the Department of Labor (DOL), “hours worked ordinarily include all the time during which an employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.”[i]
This means that the hours worked will include not just the time spent working, but also time in which the employee is required to be at the worksite. It also includes all work actually completed.
Let’s take a look at some of the questions employers often ask:
Must I pay an employee for waiting time?
Employers often wonder this, especially in industries in which it is common for employees to arrive at the jobsite before all work assignments are doled out or before work can commence for other reasons. In short, if the employee is required to be at work—even if there’s nothing to do in that moment but wait—then, yes, that is considered work time and must be paid.
Must I pay an employee who works off the clock?
Hours worked includes time that the employee is “suffered or permitted” to work, even if that work falls outside the normal scheduled hours. In short, if it is work that the employer is benefitting from and the employer knows (or has reason to believe) that the employee is working or has performed work during that time, then it will count toward hours worked. This is an important point for an employer to understand: even if the employee has clocked out, if he or she is still working, the employer has an obligation to pay the employee for the work. This issue has always been important, but it is becoming even more so as we see an increase in the number of employees who are able to conduct work offsite through electronic devices.
Must I pay an employee who is on call?
The answer to this question depends on the nature of the on-call work. If the employee must remain on-site, the answer is the same as waiting time: yes, the employee must be paid. However, if the employee can leave and go about his or her other activities while waiting to be called in, the on-call time usually does not have to be paid. There are exceptions to this, especially if there are restraints put on how the employee may spend his or her time while off-site (which could mean even that off-site time must be paid). If in doubt, ask legal counsel.
Must I pay an employee for training days?
If an employee’s training is mandatory for the job, the training time must be paid. In other words, almost all training the employer requires will be considered work time. If an employee voluntarily attends a conference outside of work hours, that could be a feasible exception if it’s not related to work and no work is conducted during that time.
Must I pay an employee for commute time?
The answer to this question depends on the commuting or travel involved.
- For travel to and from the employee’s usual worksite, the answer is usually no—those hours do not count as hours worked.
- Commute time to a new location (such as a jobsite in another city), however, usually does count as hours worked. At a minimum, the additional time it takes to commute to that location, above and beyond the employee’s usual commute time, would be paid time.
- Time spent traveling between worksites in the middle of the workday should be included in the hours worked that day.
Must I pay an employee for break time?
Generally speaking, short breaks (approximately 20 minutes or less) are considered to be standard and expected, and the employer should consider these as work time, within reason. The employer can set standards in terms of break length and the number of breaks allowed during the work day—and the employer is not obligated to pay the employee if he or she takes excessively long breaks without permission. (In fact, this behavior does not have to be tolerated, and the employee may be disciplined for such actions.) Employers just need to be sure to stay within legal and reasonable boundaries when setting restrictions on break times. (Check state and local laws, which are often stricter than federal law on this topic.)
Must I pay an employee for lunch breaks?
Lunch breaks lasting 30+ minutes are not usually considered work time, as long as the employee is able to be completely free of work during that time. If the employee must be working in any capacity during his or her lunch break, however, that time may become hours worked.
With all of these questions, it quickly becomes clear why it is important for employers to accurately track hours worked for all employees. Having accurate records is crucial.
*This article does not constitute legal advice. Always consult legal counsel with specific questions.
[i] http://www.dol.gov/whd/flsa
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.