Non-Working and Volunteer Time –
When Must it Be Paid?
You know that nonexempt employees must be paid for all hours actually worked. But what about time when they are not really working or volunteering? The law says that some of that must be paid as well.
The Federal Fair Labor Standards Act (FLSA) requires employers to pay nonexempt employees for all working hours. It also clearly requires employers to pay for some non-working hours as well such as rest periods, on-call time, required training sessions and certain travel time. These are all clear cases requiring payment. However, there are some murky work situations as well that must be examined. The wording is all important.
Interns - For-profit employers must pay interns when they are performing work that benefits the employer and is not primarily an educational experience for the intern. The key is defining “primarily educational”.
Volunteers – For-profit employer cannot legally employ volunteers, however they can have volunteers assist as part of a community effort program, project or charitable contribution.
Meetings and/or Training– All meetings and training sessions must be paid unless all four following conditions are met: 1) attendance is outside of employee’s working hours; 2) attendance is voluntary; 3) the meeting is not directly related to the employee’s job (boy is that murky!) and 4) the employee does no productive work (whatever that means…!) during the session.
Changing into Uniform– Time spent changing into and out of required clothes or uniforms that are necessary for the employees to do their job is considered compensable time.
Sleeping Time– If an employee is required to be on-duty for less than 24 hours, all time spent on-duty, even if the employer allows the employee to sleep must be paid. This means that if an employee is scheduled for a 23-hour shift and generally sleeps for 5 hours during this shift, the employee will receive wages for this time spent sleeping. If an employee’s on-duty time is over 24 hours, both parties may agree to exclude sleeping periods of up to eight hours from pay.
After Hours E-Work - Any time an employee spends after hours checking email, voicemail or any other electronic communication device for work-related activity, the time is compensable if required by the job and not just due to an “crackBerry” addiction.
Travel Time - There are some "grey areas" about when the FLSA requires travel time to be compensable. However, "home to work" and "work to home" travel time is not generally paid time. Time spent by an employee working during a commute, as could occur while commuting via bus, ferry or airplane is work for pay. Travel which is part of an employee’s job is also compensable as is overnight travel which occurs during an employee’s regular workday or travel on nonworking days if it is conducted during working hours.
It is important to note that these pay standards govern nonexempt employees. Each employer must take careful action to ensure that all employees are categorized as exempt, true volunteer or nonexempt appropriately. The U.S. Department of Labor specifically designates certain classes of workers as exempt and each employer should examine these classifications thoroughly to ensure the proper category for each employee. Please consult with your CPA for the details of such class designations.
Robert O. Sailer
Pacific NorthWest Law Group
Telephone: (425) 867-0512 www.pnwlg.com