Understanding your Pay Requirements under the FLSA

Michael J. Pires
March 4, 2009 — 3,100 views  
Become a Bronze Member for monthly eNewsletter, articles, and white papers.

The Fair Labor Standards Act (FLSA) governs employer pay practices and sets requirements pertaining to minimum wage, overtime, equal pay, child labor, and recordkeeping. Under the Act, all non-exempt employees must be paid at least the minimum wage per hour and must receive overtime for all hours worked in excess of 40 in a given week.But, what are hours worked? Does time spent waiting to be called into work count as hours worked? What about time spent traveling for company business? Or time spent on breaks? The FLSA sets strict requirements pertaining to when employees must be paid given these types of circumstances.

Below are some of those "gray areas" in which non-exempt workers may be entitled to pay under the FLSA:

1. Breaks. Although there are no federal laws requiring that employers provide their workers with breaks, if breaks are granted employers cannot place any restrictions on employee activities while on break. If employers require that employees continue to do work while on their break, than that time must be paid. Federal law does not require breaks, however several states say otherwise. Some mandate employees receive breaks if working a certain number of hours a day. Check your state requirements in the Rest Periods section of our State & Federal Laws.

2. Meals. Employers are not required to pay employees for time spent during bona fide meal periods. Bona fide meal periods are breaks that ordinarily last at least 30 minutes. During an unpaid meal period, an employee must be completely relieved from duty for the purpose of eating a regular meal. Employees required to work while eating must be paid for the time. For example, a receptionist required to eat at her desk while waiting to receive calls, must be paid for that time. It is not necessary that an employee be permitted to leave the premises if he or she is otherwise completely freed from his or her job duties.

3. On-call. Depending upon the amount of freedom an employee has, if he or she must answer work-related phone calls or be on-call to work on short notice, pay for that time may be required. On-call workers who must remain on company premises or so close that use of their personal time is severely restricted must be paid.If employees are free to use this time primarily for personal activities, they don't have to be paid. When determining whether or not to pay non-exempt workers for time spent on-call consider the following: the promiximity the employee must reamin to company premises; the amount of time the employee has to respond to calls, pages, or emails; and the duration of the on-call period.

4. Waiting time. Time spent by non-exempt employees waiting for work must be paid if that time meets the FLSA definition of "engaged to wait". Engaged to wait means an employee has been asked to wait for an assignment. Even if the employee spends that time performing non-work related activities while waiting, the time is still compensable. It's important to distinguish between engaged to wait and "waiting to be engaged". Time spent reading the newspaper before an employee's scheduled shift begins ("waiting to be engaged") is not considered compensable.

5. Sleeping time. That's right; an employee catching some ZZZ's may be entitled to pay under the FLSA. An employee required to be on duty for fewer than 24 hours is working, even though he or she is permitted to sleep or engage in other personal activities when not busy. When an employee is required to be on duty for 24 hours or more, such as doctors or nurses in hospital settings, the employer and employee may agree to exclude from paid work time meal periods and a scheduled sleeping period of 8 hours or less, provided adequate sleeping facilities are furnished and the employee can enjoy an uninterrupted period of sleep. If the sleeping period is more than 8 hours, only eight hours is to be excluded from pay. If there is no agreement, the 8 hours of sleeping time is to be considered paid work time. If sleep is interrupted to an extent that the employee cannot get at least 5 hours of sleep, the entire period must be counted as working time.

6. Travel time. Under some circumstances, employers are required to pay employees for time spent traveling. Regular commute time is not compensable, but when a non-exempt employee is given a one-day assignment at a different location than their regular worksite, the time spent traveling must be paid. Employees required to drive to different worksites to perform their regular duties (e.g., electricians) must also be paid for the time spent driving between worksites. Further, travel that keeps an employee away from home overnight is designated as "travel away from home" and is paid work time when it "cuts across the employee's workday", for example 9am to 5pm. The time is not only hours worked on regular workdays, but also during the corresponding hours on non-work days. Time spent as a passenger on a plane, boat, bus, or in a car is excluded from compensable time.

7. Lectures, meetings, trainings. Employees are not required to be paid to attend trainings or other activities as long as the following four conditions are met: (1)the event is outside of normal work hours; (2) it is voluntary; (3) it is not job-related; and (4) no other work is being performed during the event.

8. Callback pay. Callback pay applies when employees are "called back" to perform work beyond regularly scheduled hours. No federal law guarantees employees a minimum number of hours of work when they are called back. However, the hours they do work must be paid.In the case of an emergency, if an employee is called back to work beyond his or her usual working hours and must travel a "substantial distance," the employer may be required to pay for the employee's travel time as well as the additional hours worked.

9. Report-in pay. When an employee is called to work and there is no work available, the employer may be required by state law to pay for a minimum number of hours of work (reporting premium). Report-in pay applies when employees report to work as scheduled, but are unable to work due to unusual circumstances. No federal law requires employers to pay employees in this situation. However, many states have laws that set minimum pay requirements when employees report in or are called back to work. For additional information, refer to the Callback Pay/Report-in Pay section of our State & Federal Laws.

Employers should use caution in situations in which employees are required to be ready to report to work on short notice, travel for purposes of performing their job duties, or are in some way or another restricted in their personal activities. Under these circumstances employees may be entitled to pay under the FLSA.

Visit HR411.com

About the Author

Michael Pires is the President of HR411.com, an award-winning online human resources support and information portal providing on-demand access to downloadable forms, online background checking tools, plain-English State and Federal employment laws, Employee Handbooks and much more. Visit http://www.HR411.com today.

Michael J. Pires