Overview of Off-the-Clock Work Overtime Rights

If you do not qualify for a Fair Labor Standards Act (“FLSA”) exemption and you are not an independent contractor, you are most likely a “covered” employee. Covered employees must be paid for all hours worked in a workweek, including overtime hours (hours worked over forty per workweek).

In general, “hours worked” includes all time you must be on duty, or on the employer’s premises, or at any other prescribed place of work. It also includes any additional time you are “suffered” or “permitted” to work. Suffer or permit means that if your employer requires or allows you to work, that time is generally hours worked and must be paid. Time spent doing work not requested by an employer, but still allowed, is generally considered hours worked. It is the duty of the employer to see that work is not performed if the employer does not want it performed.

Some common off-the-clock violations are:

  • Instructing an hourly employee to clock out of the timekeeping system and continue working.
  • Instructing hourly employees to only record a set number of hours worked per day or week when the employee is working more.
  • Paying hourly employees only by their scheduled hours and not their hours actually worked.
  • In a call center setting, paying employees only for time spent on the phone and not for time spent on other work related activities, such as booting up their computers and applications and reviewing work related email messages.
  • Not paying hourly employees for time spent responding to emails and voicemails while outside of the office, or for other work related activities performed away from the worksite.
  • Note: An employee cannot typically waive his or her rights under the FLSA by agreement or contract, including what hours must be counted as hours worked.

A. Meal Periods

Under federal law, an employer need not provide meal breaks to its employees. However, many employers do. As a general rule, bona fide meal breaks are not considered hours worked and need not be paid. In general, 30 minutes or more is sufficient to constitute a bona fide meal break. Typically, time spent on a meal break of a shorter duration must be compensated as hours worked. In addition, during a meal break, you must be completely relieved from your job duties. If you are required to perform any job duties while eating, such time most likely constitutes hours worked and must be paid.

B. Rest Breaks

Under federal law, an employer need not provide rest breaks to its employees. However, many employers do. As a general rule, rest breaks, which are generally from 5 to 20 minutes, are considered hours worked and must be paid.

C. Holiday, Vacations and Sick Time

Under federal law, if your employer allows you to take time off for a holiday, a vacation, or because you are sick, the time-off, even though it may be paid, is not hours worked. Therefore, it need not be included in calculating your total hours worked for purposes of determining whether you are owed overtime compensation.

D. Homeworkers

A homeworker is an employee who is employed to perform work from home for his or her employer. Time spent by a homeworker preparing materials, cleaning up work related materials, and traveling to and from the employer’s company to pick up and return finished work, constitutes hours worked. However, normal private pursuits such as eating, sleeping and cleaning by a homeworker typically do not constitute hours worked.

E. Lectures, Meetings and Training Programs

Your attendance at lectures, meetings, training programs and similar activities may or may not be hours worked depending on the particular circumstances.

  • In general, your attendance at lectures, meetings, training programs and similar activities does not constitute hours worked if all four of the following criteria are met:
  • Your attendance is outside of your regular working hours.
  • Your attendance is voluntary.
  • The course, lecture, or meeting is not directly related to your job.
  • You do not perform any productive work for your employer during your attendance.

In addition, the following situations do not constitute hours worked:

  • If your employer establishes for the benefit of its employees a program of instruction that is similar to courses offered by independent bona fide institutions of learning, your voluntary attendance at such training courses, outside of your working hours, is not hours worked, even if the courses are directly related to your job or are paid for by your employer.
  • If you voluntarily attend an independent school, college or trade school after work hours, the time is not hours worked even if the courses relate to your job position or are paid for by your employer.
  • If you spend time in supplemental classroom instructions held in conjunction with an apprenticeship program it most likely does not constitute hours worked.

F. On-Call Time

If you are required to remain on your employer’s premises or so close to your employer’s premises that you cannot use your time effectively for your own purposes, such time may be considered working while “on-call,” and may be compensable time worked. For example, the frequency of call-ins may be so high that you cannot effectively use on-call time for your own purposes. In addition, all time spent responding to calls is hours worked.

G. On Duty Waiting Time

When you are already on duty, but waiting for work to do or for repairs to be made, you are engaged to wait and the time spent waiting is typically considered hours worked. This rule is the same if you work away from your employer’s premises. On duty waiting time is hours worked even though you are allowed to leave the premises or the job site during such periods of inactivity if you are unable to use the time effectively for your own purposes.

H. Off Duty Waiting Time

Unlike on duty waiting time, off duty waiting time is a period of time during which you are waiting to be engaged and is not hours worked if the following four tests are met:

If all four tests are not met, such waiting time is typically considered on duty waiting time and must be paid.

  • You are completely relieved from duty.
  • The periods of waiting time are long enough to enable you to use the time effectively for your own purposes.
  • You are told in advance by your employer that you may leave the job.
  • Your employer advises you of the time that you are required to return to work.

I. Show-up Time

If you arrive for work at the time your employer directed you to be there, but you are sent home before you perform any work, such time is typically not considered hours worked and need not be paid.

J. Preliminary and Postliminary Activities

Preliminary activities are activities that you perform before you begin your “principal” work activities. Postliminary activities are activities that you perform after you end your “principal” work activities. Principal activities are activities that you are employed to perform and also include all activities that are an integral (or essential) part of your employer’s business. Your employer must pay you for time spent engaged in principal, integral and essential activities. Depending on the circumstances, time you spend in preliminary and postliminary activities may also be compensable. Generally, walking, riding, or traveling to and from the actual place where you perform the principal activities is not compensable.

K. Regular Home-to-Work Travel

Time you spend traveling from home before the workday and returning to home at the end of the workday is generally not compensable work time. However, if you perform principal activities at home before traveling to work, your home to work travel time may be compensable. Similarly, if you perform principal activities at home after returning to home at the end of the workday, your work to home travel time may be compensable.

L. Home-to-work Travel on a Special One-Day Assignment in Another City

If you regularly work at a fixed location in one city and you are given a special one-day assignment in another city in which you will return home the same day, the time you spend traveling to and returning from the other city is typically compensable work time. However, your employer may deduct the time you would normally spend commuting to your regular work site.

M. Travel That Is All in a Day’s Work

Time you spend traveling as part of your principal activity, such as travel time from job site to job site during the workday, is typically compensable work time.

N. Travel Away from Home Community

Travel that keeps you away from home overnight is considered travel away from your home community. Such travel time may be compensable work time when it cuts across your workday. In addition, such travel time may be compensable work time if it takes place outside of your normal working hours. However, time spent in travel away from your home community outside your regular working hours as a passenger is most likely not considered compensable work time.

O. “Comp” Time

Compensatory time or “comp time” occurs when an employer allows an employee to receive days off in lieu of overtime compensation. Comp time in lieu of overtime compensation is permitted when you are a governmental employee, and when certain conditions are met. In addition, in some states private employers can give comp time in lieu of overtime compensation.

In general, non-exempt employees working for private employers are eligible for overtime pay during the weeks in which they work overtime. Private employers cannot give comp time to non-exempt employees in lieu of overtime pay and require those employees to use comp time at a later date. Non-exempt employees must be compensated for overtime during the week in which it is worked. In other words, an employee must record all their time worked accurately, and record that time for the actual day worked. If that results in overtime for the workweek, that overtime compensation must be paid. A private employer cannot ask an employee to record their hours worked as being worked on a different day than they were actually worked.

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