4. The time is spent at the employer's request.
- Example : Charitable work.
Noncompensable activities. Incidental time spent by employees during the workday proper on activities other than those integrated with their principal duties is not compensable if the employee is freed of duties for a definite time that is sufficiently long for the employee to use as desired.
- Example : Meal periods. Six hours' waiting time by truck driver for return trip.
Compensable activities. Incidental time spent by employees before or after their workday on activities other than those integrated with their principal duties is compensable if compensation is called for by a contract between the employer and the employee or the union, or by the employer's custom or practice.
- Example : Employer customarily pays for time it takes employee to travel from home to workplace.
Noncompensable activities. Incidental time spent by employees before or after their workday on activities other than those integrated with their principal duties is not compensable in the absence of a contract (one executed by the employee or an agent) or an employer custom or practice calling for compensation.
- Example : Walking, riding, or otherwise traveling to and from work; waiting in time-clock or paycheck line.
Incidental activities integrated with principal duties
Compensable generally.
Time spent by employees on incidental activities that are a part of their principal duties generally is compensable, regardless of when the activities are performed (whether during the workday, before the workday begins, or after the workday ends) and regardless of any contrary contract, custom, or practice.
- Example : Setting up a machine for particular job or distributing materials to workbench.
Exception for changing clothes and washing. Time spent by employees on changing clothes and washing can be excluded from compensable hours worked by a union contract or by a custom or practice under such a contract, even though the nature of the employee's principal duties makes these activities an integral part of those duties.
- Example : Union contract excludes clothes-changing time from measured working time in battery factory.
Other incidental activities performed during workday proper
Compensable activities. Incidental time spent by employees during the workday proper on activities other than those integrated with their principal duties is compensable if:
- 1. The time spent is for the employer's benefit.
- Example : Rest period up to 20 minutes.
- 2. The time spent is controlled by the employer so that the employee cannot use it for his or her own purposes.
- Example : Waiting for work; remaining on call on or near employer's premises.
- 3. The time spent is "suffered or permitted" by the employer.
- Example : Continuing to work after shift ends to correct error or to prepare records.
- 4. The time is spent at the employer's request.
- Example : Charitable work.
Noncompensable activities. Incidental time spent by employees during the workday proper on activities other than those integrated with their principal duties is not compensable if the employee is freed of duties for a definite time that is sufficiently long for the employee to use as desired.
Example : Meal periods. Six hours' waiting time by truck driver for return trip.
Other incidental activities performed before or after workday
Compensable activities. Incidental time spent by employees before or after their workday on activities other than those integrated with their principal duties is compensable if compensation is called for by a contract between the employer and the employee or the union, or by the employer's custom or practice.
Example : Employer customarily pays for time it takes employee to travel from home to workplace.
Noncompensable activities. Incidental time spent by employees before or after their workday on activities other than those integrated with their principal duties is not compensable in the absence of a contract (one executed by the employee or an agent) or an employer custom or practice calling for compensation.
Example : Example: Walking, riding, or otherwise traveling to and from work; waiting in time-clock or paycheck line.
Changing clothes, showering, and washing. Whether or not employees must be paid under the FLSA for time they spend on changing clothes, showering, or washing depends on the nature of their work and the existence of a contract, custom, or practice as to compensability.
If employees change clothes, shower, or wash for their own convenience, hours worked is not affected. However, employees must be paid for the time spent in this manner if the activity is required by the nature of their principal duties, by the employer's rules or by some law.
Example : Jack Rilley works for the KC Beef processing plant. As part of Jack's pre- and post-shift activity, he changes into and out of safety clothing, cleans protective equipment and the cutting knives he uses for his job. He spends a total of 20 minutes each day for these activities. Because these activities are required by the nature of his principal duties, Jack must be compensated for this time.
Meal periods. Unless the following three conditions are satisfied, meal periods must be counted as hours worked:
- The meal period usually must be at least 30 minutes, but shorter periods may be justified in special cases. However, coffee and snack breaks cannot be treated as shorter, noncompensable meal periods.
- The employee must be completely relieved of all duties, even inactive duties.
- The employee must be free to leave the duty post, although confining the employee to the plant premises is permissible.
A mere possibility that emergency work may have to be performed during lunch periods if machinery breaks down does not give pay rights to employees who choose to remain on the plant premises during those periods. However, "on-call" status during meal times is compensable, as are meal periods taken by night watchmen.
Medical attention. Time spent by employees in waiting for and receiving medical attention is compensable if:
- Medical attention is received during working hours, and
- Medical attention is received on the plant premises, or
- Employer directs that medical attention be secured outside.
Employees need not be paid for time devoted to medical attention if:
- Employee visits company doctor outside working hours, even though injury occurred while working.
- Employee chooses to have injury received during working hours treated by an outside, rather than a company doctor.
Rest periods and coffee breaks. The FLSA does not require that employees be given rest periods, but if rest periods are given, either by the employer voluntarily or to satisfy a union contract, the rest periods must be counted as hours worked if they last 20 minutes or less. Coffee and snack breaks are compensable rest periods. They cannot be excluded from hours worked as meal periods. The compensability of rest periods longer than 20 minutes depends upon the employees' freedom.
Show-up, callback, on-call, and stand-by time. To what extent show-up, call-back, on-call, and stand-by time must be counted as compensable hours worked under the FLSA is explained below.
Show-up time. Under contracts guaranteeing employees pay for a minimum number of hours when they report to work, only the time actually worked generally need be counted as hours worked under the FLSA. However, if the employee is required to wait 10 or 15 minutes before being advised that no work is available, the 10 or 15 minutes are compensable working time.
Call-back or call-out time. Time not worked by an employee under guaranteed pay for a minimum number of hours when the employee is called back to work after the regular workday can be excluded from hours worked. Time spent in traveling to a customer's premises, as well as time devoted to regular work while there, is compensable.
On-call time. Whether or not the time an employee is on call must be counted as part of compensable working time depends upon the employee's freedom while on call. If the employee must remain on or near the employer's premises so that the time cannot be used as the employee chooses, the time is compensable. However, if the employee is able to come and go as desired, even though a contact telephone number is required, the time can be excluded from hours worked.
Stand-by time. Workers who are required to stand by their posts ready for duty, whether during lunch periods, during machinery breakdowns, or during temporary plant shutdowns, must be paid for the time.
Training programs, lectures, and meetings. Time spent in attending employer-sponsored training programs, lectures, and meetings need not be credited as working time if:
- Attendance occurs outside employees' regular working hours;
- Attendance is voluntary (it is not voluntary if required by the employer or if the employee is led to believe that nonattendance will prejudice his or her working conditions or employment standing);
- Employee does no productive work while attending; and
- Program, lecture, or meeting is not directly related to the employee's job (it is directly related to the job if it aids the employee in handling the present job better, as distinguished from teaching the employee another job or a new or additional skill).
Travel time. Normal travel from home to work is not work time. The employee is engaged in ordinary home-to-work travel that is a normal incident of employment. However, the following travel is work time:
Time spent on travel where an employee who has gone home after completing the day's work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his/her employer's customers.
Travel that keeps an employee away from home overnight is work time when it cuts across the employee's workday. Regular meal period time is not counted. Any work that an employee is required to perform while traveling must, of course, be counted as hours worked.
Work hours also include time spent driving a company truck between the company's base and the job site, both before and after the regular working day.
All travel time subsequent to the receipt of assignments/instructions that an employee calls in to a dispatcher for before leaving home, including time traveled from home to the first worksite.
Travel from home to first worksite if the employee has already received assignments/instructions from the dispatcher the night before. You must pay an employee for the time spent driving from home to the first worksite or from your worksite to the first worksite, whichever is less.
Travel to return to the employer's place of business at the end of the day. You must pay the employee for the time spent driving from the last worksite to your place of business or from the last worksite to the employee's home, whichever is less.
Not all travel is work time. The following travel will not be compensable:
Traveling between employee's home and worksite driving the employer's vehicle is not compensable where the following circumstances exist:
- driving the employer's vehicle is strictly voluntary and not a condition of employment,
- the vehicle involved is the type of vehicle that would normally be used for commuting,
- the employee incurs no costs for driving the employer's vehicle or parking it at the employee's home and elsewhere, and
- the work sites are within the normal commuting area of the employer's establishment.
What if inadequate records are kept? If you do not keep adequate records on an employee's time spent traveling between home and work sites, the Wage and Hours Division will assert that all the employee's time spent traveling between home and work sites is compensable. Employees should record time spent driving from home to the first work site accurately.
Time spent by employees driving commuter vans in a "van pooling" program is not compensable travel time.
Waiting time. If an employee spends time in waiting before or after the performance of principal duties, the Portal-to-Portal Act makes the time noncompensable, in the absence of a contrary contract, custom, or practice. But if the waiting occurs during the workday, guidelines laid down under the FLSA govern, and those guidelines depend upon the employment contract and the facts in the case.
Waiting to don or doff protective work gear. The United States Supreme Court, in IBP, Inc v Alvarez (SCt 2005) 151 LC 35,056, ruled that waiting to don the first piece of protective work gear prior to the start of the workday is not compensable under the FLSA. However, waiting to doff protective work gear at the end of the day is compensable. What's the difference? The pre-donning wait time is not part of the continuous workday. Donning and doffing are integral and indispensable to a principal activity, according to the Court, and are thus principal activities themselves. As the first and last principal activities of the day, the time between them is part of the continuous workday, and as such is compensable. Also compensable according to the Court, is the time that employees spend walking to their production area after donning required work gear.
Waiting to start duties. An employee who waits before starting duties due to an arrival at the place of employment that was earlier than required is not entitled to pay for the waiting time. On the other hand, if the employee reports at the required time and then waits because there is no work to start on, the waiting time is compensable working time.
Waiting while on duty. All time spent by the employees in waiting while on duty must be counted as hours worked. This is true even though the employees are allowed to leave their job sites or the plant premises. The standard for compensating a clocked-in employee kept waiting is whether the employee can use the time effectively for his or her own purposes.
Waiting after relieved from duty. Waiting by an employee who has been relieved from duty need not be counted as hours worked if:
- Employee is completely relieved from duty and allowed to leave the job;
- Employee is told he or she is relieved until a definite, specified time; and
- The relief period is long enough for the employee to use the time as seen fit (this depends upon the circumstances in each case).
Reprinted with permission. © CCH