In the age of smartphones, employees are often reached by employers, customers and clients anytime, day or night. Employers want their employees to be accessible even when outside the office, but would rather not pay their employees for that accessibility. Employees also participate in actions related to work – but their manager may not think they are actually working. So, under federal law, what time is considered working time, for which employers must compensate their non-exempt employees (those who are entitled to receive overtime compensation)? The main categories are discussed, below:
Workday. An employee’s workday consists of all time that the employee is required to be on the employer’s premises or at a location designated by the employer, and during which the employee is on duty and (supposed to be) performing functions on the employer’s behalf. The employee does not necessarily have to be engaged in work that is productive for the employer during that time, as described below, for this to be considered working time for which the employee needs to be paid.
Off-Duty. “Off-duty” time is that which is NOT working time and for which employers do not need to compensate their employees. Employees are off-duty if they are free to engage in personal activities—go where they wish, engage in whatever activities they wish, be out of touch, drink alcohol, etc.
Waiting and On-Call. Workers who are hired to wait, even if they are engaged in non-work activities while they are waiting, are considered to be working. For example, a receptionist at his desk who is texting with friends while waiting for customers is working, because he was hired to wait for customers. Employees on-call are working if they are required to remain on or near the employer’s premises, or if other rules for being on-call restrict the employee’s freedom to engage in personal activities. As the saying goes, if employees are “engaged to be waiting” – they are on-call and are to be paid for that time. If they are “waiting to be engaged” (for example, could be called in from a stand-by list, but if they cannot be reached the company will simply call the next person on the list), they are not working and do not need to be paid for “waiting.”
Rest, Meals and Sleep. Short breaks of 20 minutes or less are considered working time, without regard to what the employee does during that time. Meal times or other breaks of 30 minutes or more are not compensable time, as long as the employee is not required to work during that time. Sleep time for employees who are on-duty but work less than 24 hours in a row is most likely compensable time. Sleep time of 5 to 8 hours for employees who work more than 24 hours in row may not be compensable
Conferences, lectures and training programs. Employers do not have to compensate employees for time spent at conferences, lectures and training programs if (1) they were held outside of normal work hours, (2) they were not job-related, (3) the employee’s attendance was voluntary, and (4) the employee did not perform other work during that time. If the employee is required to be there as part of their job, attendance is not voluntary and they need to be paid for their time.
Travel. Employers do not have to compensate employees for their time traveling to and from work each day (their normal commute). But travelling during the day, for example from client to client, is compensable time, as is out-of-town travel for business meetings provided the travel occurs during hours the employee would otherwise be working. There are regulations governing when travel time is working time, and counsel should be consulted if there are questions.
E-mail. Some employees are required by their employers to check and respond to email outside of normal working hours. Others are permitted by their employers to check and respond to email outside of normal working hours. In both cases, checking and responding to emails may be work. The time spent on work emails, even if it only a few minutes here or there, can add up over the course of the week into a significant amount of time. Employers may be required to compensate employees for that time. If the time is what is called de minimus, however (very short; insignificant), it may not be compensable.
Donning and Doffing. Employees who are required to wear protective clothing during their shifts must be compensated for time spent putting on (donning) and taking off (doffing) the protective clothing. Examples are employees at a food processing plant or employees who work with hazardous materials.
In addition to the federal rules described above, employer should be aware of any applicable state laws in the locations in which their non-exempt employees work. When employees are classified as exempt and not eligible for overtime pay compensation (which classification needs to be made in conformance with applicable law), the employee usually receives a weekly salary without regard to the number of hours the employee works, or the activities in which he or she is engaged, so the above would not apply.
