What Counts as Hours Worked?

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 Understanding Your Workplace Activities

Many individuals question what workplace activities are covered for getting paid. In some of the following instances, you may be entitled to pay:

  • Showing up a little early
  • Eating lunch while answering phones
  • Attending a trade show or seminar
  • Travel time
  • Taking work-related calls at home

If you are being productive on behalf of the company, you should get paid regular wages or overtime pay for that productivity.

What Are the Overtime Pay Requirements?

The Fair Labor Standards Act (FLSA) sets the policies for overtime pay provisions. Typically, when an employer allows or requires an employee to work overtime, they are bound to reimburse the worker for the overtime work. Workers under the FLSA must obtain overtime pay for hours worked over 40 hours. The FLSA does not demand overtime pay for hours worked on weekends or holidays.

There is no set limitation established in the FLSA on the number of hours to work in any workweek. Nevertheless, different workweeks can be formed for workers or groups of workers. The overtime provision cannot be waived by agreement between employer and workers. Also, an employer cannot preclude an employee from working overtime and cannot demand an advance authorization for any work done during overtime.

The employer cannot refuse to pay for any work done overtime if it falls under the FLSA; the workers have the privilege of compensation that they worked for. Overtime pay must be calculated based on the average hourly rate derived from the earnings worked during the workweek. Earnings may be based on a piece-rate, salary, or commission.

Which Employees Are Exempt from Receiving Overtime Pay?

Unless an exception applies if your employer is covered under the FLSA or the local state’s overtime law, all employees are entitled to overtime pay.

The following workers are exempt and, therefore, cannot receive overtime:

  • White-collar jobs such as executive, administrative, and professional that based on a salary;
  • Independent contractors;
  • Volunteer employees;
  • Outside sales personnel;
  • Specific computer specialists;
  • Employees of amusement parks or county fairs;
  • Workers of organized camps or religious conference centers;
  • Workers of specific small newspapers;
  • Newspaper deliverers;
  • Employees in fishing operations;
  • Babysitters; and
  • Criminal investigators.

What Are the Requirements for Overtime Pay?

The United States Department of Labor (DOL) published new policies regarding overtime pay effective as of January 1, 2020. These policies will help more than a million Americans obtain overtime pay. One of the significant changes included raising the minimum salary requirement for FLSA overtime exemptions.

It also raised the annual compensation requirement and permitted employers to use the nondiscretionary bonuses or incentive payments to meet the necessary salary standard for exempt executive, administrative, and professional workers. Lastly, it changed the special salary levels for employees in US territories and motion picture industries.

Nevertheless, laws vary from state to state; therefore, it is helpful to research the applicable local guidelines for overtime pay and minimum wage.

How Does the Law Define “Hours Worked?”

Employment law defines “hours worked” as when one is employed and should therefore be paid. The Fair Labor Standards Act (FLSA) defines hours worked as to “suffer or permit” to work. State law may define hours worked as the employee’s time is under the employer’s authority.

If an employer knows the worker is doing something constructive, the worker is putting in hours and should be paid for that work. However, if the employer does not want to pay the worker for this extra “voluntary” work, they must prohibit the worker from coming in early, eating lunch at their desk, taking work calls at home, etc. If you are doing something constructive for your employer, it is deemed hours worked, and you should be paid.

What Does Not Count as Hours Worked?

The FLSA requires employees to take a 10-minute break for every 4 hours worked, and lunchtime is not paid. If the worker is not free and on their own time during lunch, it will count as hours worked.

The time it takes to commute is not paid because where you live is your decision. Nevertheless, you should be compensated if you travel on behalf of the company, such as to another business location or overnight work (minus sleep, eating, commute time, and any personal time). On-call employees may count hours worked for the time on-call if they were not allowed to engage in personal activities.

What Are Some Examples of Activities That Qualify as Hours Worked?

Everyday activities that qualify as hours worked include:

  • Coming Into Work Early: Just like working late, they should be compensated if they are being productive.
  • Monitoring the Phones While Eating: Though eating is considered personal time, they should be compensated if they are doing so while being productive.
  • Meeting, Lecture, or Seminar Attended: If the worker attended at the employer’s recommendation, and it was during business hours, then they are due payment.
  • Taking Phone Calls at Home: Even though the worker is at home, they are working if they take work calls and should be paid.
  • Waiting Time: If an employee is waiting or standing by, it is hours worked if they cannot use the time for their own purposes.

What Are Some Fair Labor Standards Act Requirements?

The Fair Labor Standards Act creates several requirements for employers. FLSA laws include provisions that employments must:

  • Pay their workers at least minimum wage;
  • Pay their workers overtime pay for time worked over 40 hours in a workweek;
  • Adhere to the child labor provisions; and
  • Keep various records of items such as:
    • Hours;
    • Wages; and
    • Other wage records ordinarily kept in business practice.

What Type of Record-Keeping Standards does FLSA Require?

Under the FLSA, employers must keep accurate and honest records of wages, hours of work, and other necessary info. These documents are not required to be held in any specific form or format. Also, time clocks are not necessary.

Nevertheless, employers must possess the following documents regarding minimum wage and overtime provisions:

  • Personal information about the employees, including their:
    • Name;
    • Address;
    • Occupation;
    • Sex; and
    • The date of birth if the worker is under 19 years old;
  • The day and hour that the workweek begins;
  • The total hours worked during each workday and workweek;
  • The worker’s total daily or weekly earnings;
  • The regular hourly pay rates for weeks when overtime is performed;
  • The total overtime pay for the week;
  • Any wage deductions or additions;
  • The total wages rendered for each pay period; and
  • Payment dates and pay periods are covered.

There are some distinct types of workers for which an employer may be required to keep special record-keeping information. These may include:

  • Homeworkers;
  • Workers who receive housing; and
  • Other specific cases.

Which Employees Are Not Covered Under the Fair Labor Standards Act?

The Fair Labor Standards Act has exemptions from its essential requirements. These exemptions hinge on the type of business or work the employer or employees are engaged in. In many circumstances, the overtime provision, the minimum wage provision, or both provisions do not apply to certain workers.

Typical careers or employees that are not covered under all or parts of the FLSA include:

  • Sales workers of retail or service establishments that work on commission;
  • Seasonal or recreational establishments;
  • Computer professionals earning at least $27.60 per hour;
  • Salespeople, partsmen, or mechanics of car dealerships;
  • Drivers, driver’s helpers, loaders, or mechanics;
  • Farmworkers; or
  • Executive, administrative, professionals, or outside sales employees paid on a salary basis.

Should I Speak with an Attorney About the Unpaid Hours from My Employer?

If you have questions regarding any unpaid hours by your employer, an experienced employment attorney can counsel you on your rights and options. If your employer has acted illegally, your attorney can help you file your claim and represent your best interests in court.

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