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Wage Claims, Overtime & Other Employee Compensation

ARE YOU ENTITLED TO ADDITIONAL PAY FOR “WORK TIME”?

     1. What work-related activities are considered “work time” for which I must be paid?

     The basic rule applicable to “work time” is that an employee must be paid for any time spent on activities that are controlled by and for the benefit of the employer. This includes not only your regular “on-the-clock” work time, but also any “off-the-clock” time you spend performing job-related activities which benefit your employer. If your employer knows (or should have known) that you are working, and lets you do it, the employer will be responsible for paying for work time. All time that an employee is required to be at the workplace (regular shift) is work time.

     This includes rest breaks (but not meal breaks) and “nonproductive” time such as travel time in employer's transportation and time spent by a call center employee waiting for the phone to ring. Work time also includes time spent preparing the equipment or tools required at work.

     In addition, all time you spend performing work-related activities that the employer permits is work time, whether on your employer's premises or not, and whether “required” or not. Work done “at home” or at a place other than the normal work site is counted as work time for which you are paid.

     “Voluntary” work is counted as work time and must be paid. “Unauthorized” or “unapproved” work or overtime and must be counted (provided the employer knows or should know it is being done and permits you to do it anyway). An employer may not accept the benefit(s) of work performed by its non-exempt employee without paying the wages due.

     2. While I have regular shifts during the work week, I am also “on-call” outside work hours every other weekend. Should I be paid for my on-call time?

     Under some circumstances, time that an employee is placed “on-call” may be considered as work time. Generally, if you are not allowed to control and use the time for your own enjoyment or benefit, then the time will be considered work time. On the other hand, if you have control of and are able to use the time for your own benefit, then the time will not be counted as work time.
In determining whether on-call time is work time, the California agency that enforces and interprets employment laws, the Department of Labor Standards Enforcement (DLSE), considers primarily the extent to which the employee is subject to the control of the employer. If the employee is restricted while on-call so as to disallow personal pursuits, the time is subject to employer control and constitutes hours worked. There are a variety of factors used to decide this question, including:

       a) the frequency of the calls received
       b) the expected response time
       c) the length of time worked when called
       d) any restrictions on how far an employee may travel away from home, and
       e) the ability of the employee to switch shifts. 

     3. My employer pays me for the hours I am placed on-call, but at a much lower pay rate than for my regular shift hours. Is this practice legal?

     It is not against the law to have a pay differential for different kinds of work, as long as you are paid at least the minimum wage for all hours that you work. If you are eligible for overtime, overtime pay is calculated based upon the type of work you are doing in excess of forty hours. For example, you work 30 hours a week for $15 an hour actively working, and 10 additional hours a week for $10 an hour on-call. If you are required to work five extra hours, your pay rate depends on whether your work during that extra time is more similar to the higher-paying job (actively working) or the lower-paying job (waiting for a call.)

     4. I take home some work and do them “off-the-clock.” My manager knows about the extra work and does not stop me from doing it so we could meet our deadlines. Should I be paid for this work time?
     Yes. Employers are liable for unpaid wages when they fail to include time spent by employees performing work activities outside of their normal shifts as work time. Some employees, for example, may “come early” and start working before their shift's official starting time. Pre-shift roll calls, safety meetings, exercise sessions, and equipment set-ups before the official start time are all considered work time.

     Work performed after the designated shift time is over must be counted as work time, as well. For example, time spent cleaning equipment after a shift, “on the way home” activities such as dropping off mail at the post office or delivering some paperwork to a customer, and donning off safety suits are considered work time.

5. My work as caregiver in a residential facility requires me to be on duty 24 hours a day, 6 days a week, but I am allowed to sleep at night during that time. Does my employer have to pay me for my sleep time?

     If you are required to be on duty for more than 24 hours at a time, you and your employer may agree to exclude eight hours per day as sleep and meal periods, for which you are not paid, as long as your employer furnishes adequate sleeping facilities and you can usually enjoy an uninterrupted night’s sleep. However, if the conditions are such that you are not able to sleep for at least five hours during the eight-hour sleep period, or you are forced to work during that period, then the eight hours revert to time for which you must be paid. If your work shift is less than 24 hours, then any time you are allowed to sleep during your shift is considered paid time.

     6. Four days a week I work at a branch office 1 hour away from home. On Mondays, I have to attend a meeting at the main office, which is 2 hours away. Does my employer have to pay me for the travel time to the main office?

     An employee who travels from home to the work site and returns home at the end of the workday is not entitled to pay for that commute time since it is not considered work time. When an employee uses a company vehicle to travel from home to work, the commute will not be work time if 1) the travel is within the normal commuting area for the employer’s business and 2) there is an agreement between the employer and the employee excluding travel time from paid work.

     A different rule applies where an employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The travel time to and from the other city is considered work time, except that the employer may deduct or discount the time the employee would normally spend commuting to the regular work site.

     An employee’s travel time that is part of the job, such as travel from job site to job site during the workday, is work time and must be counted as hours worked. For example, after the employee arrives at his regular branch office in the morning, he is told to work at another local branch to cover an employee on vacation. The travel time from one branch to the next is paid work time.

     7. My work requires me to visit several branch offices out of state that involves overnight travel. Am I entitled to pay for all the time I spend away from home?

     Travel away from home is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy, however, the Department of Labor will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger in an airplane, train, boat, bus, or automobile.

© Law Offices C. Joe Sayas, Jr.