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WHAT CONSTITUTES “COMPENSABLE TIME” UNDER THE FLSA?

This summary provides general information concerning what constitutes “compensable time” under the FLSA. The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. The amount employees should receive cannot be determined without knowing the number of hours worked.

How is  “Employ” defined?

By statutory definition the term “employ” includes “to suffer or permit to work.” The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place. “Workday”, in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee’s scheduled shift, hours, tour of duty, or production line time.

What is the Application of the Principles?

Employees “Suffered or Permitted” to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been “engaged to wait.”

On-Call Time: An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.

Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer’s rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.

Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.

Home to Work on a Special One Day Assignment in Another City: 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 time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

Travel That is All in a Day’s Work: Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel 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 the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

What are some typical problems?

Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

$18,496 paid to 42 H2B visa workers of Vanderbilt Landescaping, LLC for wage violations

Vanderbilt Landscaping, LLC recently agreed to pay $18,496 to 42 workers after a WHD investigation found workers were not compensated for visa and transportation costs that reduced their wages below the federal minimum wage. The company also failed to compensate workers for all hours spent on job duties, resulting in them not receiving overtime pay when hours worked exceeded 40 hours in a week. Back wages in that case have been paid to all workers who could be located.

The H-2B program permits employers to temporarily hire nonimmigrants to perform nonagricultural labor or services in the United States. The employment must be of a temporary nature for a limited period of time, such as a one-time occurrence or for seasonal, peak load and intermittent needs. The H-2B program requires the employer to attest to the Department of Labor that it will offer a wage that equals or exceeds the highest of the following: the prevailing wage, the applicable federal minimum wage, the state minimum wage or the local minimum wage. That wage must be paid to the H-2B nonimmigrant worker for the occupation in the area of intended employment during the entire period of the approved H-2B labor certification. The H-2B program also establishes certain recruitment and displacement standards in order to protect similarly employed U.S. workers.

The Fair Labor Standards Act requires that covered employees be paid at least the federal minimum wage of $7.25 per hour as well as time and one-half their regular hourly rates for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law.

This blog is sponsored by the Law Office of Rose H. Robbins, established in 1987 and located in Boca Raton, Florida, which serves clients all over Florida.   The firm concentrates in the following areas: Employment Law &  Immigration. Rose H. Robbins is fluent in Spanish and French.  Tel: (954) 946-8130.  Email: rose (at) roserobbins.com

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Office:  2255 Glades Road,  Suite 324A,    Boca Raton, Florida 33431

The Law Office of Rose H. Robbins, Lawyers and Attorneys, serve all of Florida including South Florida, North Florida, Miami-Dade County, Broward County, and Palm Beach County, as well as the cities of Hollywood, Fort Lauderdale, Boca Raton, Pompano Beach, Lighthouse Point, Deerfield Beach, Pembroke Pines, Miramar, Margate, Plantation, Aventura, Miami Beach, Hialeah, Coral Springs, Tampa, Jacksonville, Orlando, Cooper City and Coconut Creek in unpaid overtime, minimum wage, wage and hour, discrimination claims and immigration matters. Our goal is to level the playing field for employers who play by the rules.

You may contact the Law Offices of Rose H. Robbins for a free consultation to see if you have a case for unpaid overtime or minimum wages by calling (954) 946-8130 or by filling out the confidential form below. If our office decides to accept your case and we enter into a written, signed retainer agreement you will not have to pay anything unless we win your case. Appointments are available at various locations in Palm Beach, Broward and Miami-Dade Counties.

Please use the form below to contact the Law Offices of Rose H. Robbins for a free evaluation of your employment concerns or call (954) 946-8130.

$56,000 in back wages for 17 employees recovered from auto dealership in Milton, Georgia

June 27, 2011. McKenzie Motors in Milton, Florida agreed to correct minimum wage, overtime and record-keeping violations. The U.S. DOL has recovered $55,807 in back wages for 17 employees of McKenzie Motors, a Buick GMC dealership in Milton, following an investigation by the department’s WHD that found violations of the minimum wage, overtime compensation and record-keeping provisions of the Fair Labor Standards Act.

Investigators determined that 15 automobile sales personnel were paid weekly and monthly commissions regardless of hours worked. While these employees are exempt under the FLSA from receiving overtime compensation, in some weeks they did not make sufficient commissions to meet the required federal minimum wage for the hours worked. The company also violated the FLSA’s record-keeping provisions by failing to maintain accurate records of the hours worked by sales staff.Additionally, the company improperly classified two other employees as exempt from overtime wages; as a result, they did not receive proper compensation for all hours of their work.  McKenzie Motors has paid all back wages owed to employees and agreed to future compliance with the FLSA, including ensuring that sales employees are paid at least the statutory minimum wage for all hours worked or commissions, whichever is higher. As part of the agreement, all employees will document their hours on timesheets.

The FLSA requires that covered nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, and time and one-half their regular rates of pay for hours worked beyond 40 in a week. Employers also must maintain accurate time and payroll records.

Please contact the Law Offices of Rose H. Robbins for a free evaluation of your employment concerns.