Work Time

Workers are often confused about what activities are considered “work” for which they must be paid, as opposed to activities for which the employer has no legal obligation to pay the employee.

The basic principle guiding “work time” is that an employee must be paid for any time spent on activities that are controlled by and that benefit the employer. This not only includes your regular “on-the-clock” work time, but also includes any “off-the-clock” time you spend performing job-related activities which benefit your employer. If your employer knows that you are doing work (or could have found out by looking), and lets you do it, your employer will be responsible for paying for your work time. Employers cannot “allow” you to work on your “own time.”

With only a few exceptions, all time an employee is required to be at the premises of the employer is work time. All regular shift time is work time. This includes most “breaks” (if there are breaks), and “nonproductive” time (for example, time spent by a call center employee waiting for the phone to ring).

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 work, and the time must be counted as work time for which you are paid. “Voluntary” work is work, and the time must be counted. “Unauthorized” or “unapproved” work is work and must be counted (provided that the employer knows or should know it is being done and permits you to do it anyway). The employer is charged with controlling the work of its employees. If an employer does not wish you to perform work, it must keep you from working if it does not wish to pay for that work. An employer may not accept the benefit(s) of work performed by its nonexempt employees without counting the time in computing the employee’s pay.

This principle is called “suffered or permitted to work” time by the Department of Labor. It is definedas “any work performed by an employee for the benefit of an agency, whether requested or not, provided the employee’s supervisor knows or has reason to believe that the work is being performed and has an opportunity to prevent the work from being performed.” These hours are considered work time and are compensable.

Here is how the Fair Labor Standards Act (FLSA) addresses some common work-related activities in the context of work time:

Waiting Time: Whether waiting time counts as work time is somewhat ambiguous and thus depends on the particular circumstances. Broadly, if the employee is “engaged to wait,” that time is considered work time. This nonproductive time, such as time spent by a call center employee waiting for the phone to ring, is considered work time.On-Call Time: If being on-call requires the employee to remain on the employer’s premises, this is considered work time. If the employee is allowed to be on-call at home or elsewhere, this may not be considered work time. If the employee has more freedom while on-call, it is often not counted as hours worked, but if the employee is under more restricted conditions while being on-call (such as the employee being burdened with calls from the employer preventing personal use of the time), it may be counted as hours worked.Rest and Meal Periods: Short rest periods (usually 20 minutes or less) are typically paid for as working time. Longer meal periods (usually 30 minutes or more) are typically not counted as work time. However during these meal times the employee must be completely relieved from duty and must be free to do what they wish while on break.Sleeping Time and Certain Other Activities: If the employee is required to be on the employer’s premises while on duty for a shift that is less than 24 hours, then any time the employee is allowed to sleep during the shift is considered work time. If the employee is on duty for 24 hours or more, the employer and employee may come to an agreement to exclude 8 hours from the shift. However, if the employee is not able to sleep for at least 5 of those excluded hours, they must be paid for the whole shift. If the employee resides on the employer’s premises or works from home (such as nannies or housekeepers that live in the home), then employers generally do not have to pay employees for sleeping time.Lectures, Meetings, and Training Programs: This time must be counted as work time unless it is outside of normal hours, it is voluntary, it is not job related, and no other work is concurrently performed.Travel Time: Whether or not travel time is considered work time depends on the type of travel involved. See question 9 for more details on the different kinds of travel.

While all actual work time must be counted, only actual work time must be counted. This means that hours where you are not working do not count as work time, even if you are paid for them. For example, leave time (paid time off such as vacation, holiday, and sick time) and meal time are not considered as work time. In addition to leave time and meal periods, other potential “time not worked” may include some travel time, and sleep time

Almost every employee that earns a wage rather than a salary has been guilty of waiting eight minutes after the scheduled clock-out time to gain a quarter hours pay after rounding up and the flip side of clocking-in just at seven minutes causing the employee to lose time. Recently, the Ninth Circuit Court of Appeals ruled that for logging time, neutral-timekeeping is lawful under the FLSA. Neutral time keeping refers to a time log system that neither favors the employee nor the employer in the clock-in or clock-out process. For example, a non-neutral timekeeping method would be a situation where an employee would be paid the entire quarter hour, even if he punched in late by six minutes. This would be favorable to the employee. Clock-in times and clock-out times have been litigated recently.

The Portal-to-Portal Act,  amended the FLSA in the 1940’s, and clarified many aspects of what is considered work time. To determine whether your employer is covered by the FLSA, please see our site’s page on minimum wage.

In recent cases the Supreme Court has ruled that employers do not have to pay for time spent changing into safety gear or for time spent going through post-shift screenings. Instead, the Supreme Court said these were issues for labor unions to work out in Collective Bargaining Agreements.

While the frustration of an unsuccessful job hunt might motivate you to do almost anything to get your foot in the door, this offer is simply a bad idea. Were the company to take you up on it, in most cases the employer would be breaking the law. While there are specific exceptions for those volunteering for private nonprofit and governmental organizations, the law requires that if you work, you get paid at least the minimum wage ($7.25 under federal law, and higher in some states).

Even nonprofit and governmental organizations using volunteers cannot assign them to tasks similar to work customarily performed by employees. Volunteers cannot be involved in the nonprofit’s work that is a commercial enterprise competing with other businesses (such as a church thrift store or a hospital gift shop.) And if you’re seeking to volunteer for a for-profit business, think again. You cannot waive the right to receive the minimum wage for the work you do; otherwise, employers could routinely exploit desperate employees by asking them to waive all or part of their wages. A reputable company is not going to risk legal liability by hiring “volunteers,”-not when you could later sue them for back wages and penalties covering the hours you worked.

The practice of “on-call time” is becoming more widespread, as more employers agree to pay employees who agree to be available outside regular work hours if needed, and to respond by phone or computer within a certain period of time after being contacted. The increasing number of technological devices with the ability to keep individuals in touch 24/7, and employers’ willingness to allow more flexible work arrangements means that the question of pay for “on-call-time” is becoming both more common and more complex.

Time that an employee is “on-call” may, under some circumstances, 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 payable time.

There are a variety of factors that courts use to decide if on-call time is work time, including:

The frequency of the calls received,The expected response time,The length of time worked when called,Any restrictions on how far an employee may travel away from home, andThe ability of the employee to switch shifts.

On-call time must be assessed on a case-by-case basis and there is no way of describing a rule that will apply in every circumstance. Here are a couple of examples which illustrate the differences between paid and unpaid on-call time:

Jennifer is a crisis management (suicide) counselor for a social service agency. Her agency requires that a counselor with her expertise remain available at all times, and the four counselors in her agency each have one 24-hour shift every other weekend. Jennifer must stay in her apartment, except to meet with clients, be available by phone, and cannot drink alcohol. She cannot even throw a small party, because if a call came in, she would have to leave her guests to responds. Since Jennifer cannot control and enjoy her on-call time as she wishes, she must be paid for that time.Larry is a manufacturer’s customer service representative. Although he works in an office on-site between 9 and 5 on weekdays, his employer wants him to be available after hours for some of the retail businesses he services, who do most of their sales to customers on weekends. Larry has a cell phone provided by his employer, and he is expected to return calls from his office or his clients as soon as possible after he receives a call. Since no other restrictions are placed on Larry’s time, this is not considered on-call time for which he must be paid. However, any work he does outside work hours is work time for which he must be paid.

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, if you work 30 hours a week for $15 an hour actively working, and the additional 10 hours a week for $10 an hour on call, and then work ten more hours, what you get paid depends on whether your work during that extra time is more similar to the higher-paying job or the lower-paying job: are you actively working, or on call?

Yes. Employers can face expensive lawsuits when they fail to include time spent by employees performing work activities outside of their normal shifts as paid time. Courts have held that “work time” includes time spent by employees maintaining equipment, staying late after normal shifts, doing job-related paperwork at home, job-related phone calls, working during meal breaks, and other activities as well.

Some employees, for example, may “come early” and start working before their shift’s official starting time. This time counts as work time and must be included in pay computations, provided only that the employer knew or should have known that the employee was beginning work early (and, of course, to the extent that the employee spent pre-shift time actually performing work activities). Pre-shift “roll calls” are work time; so are pre-shift meetings like safety meetings. Time spent setting up equipment before the official start time of a shift is work time.

Employees may similarly “stay late” and perform work after their designated shift time is over, but this time must be counted as work time, as well. Time spent by an employee cleaning equipment after the close of a shift is work time. Post-shift work time could also include time spent by an employee performing job-related activities “on the way home,” as for example a secretary who drops off the day’s mail at the post office or delivers some paperwork to a customer or supplier. Some employees take work home. That time may well be work time. If an employee is contacted at home by telephone for work-related reasons, the time spent is work time (and, of course, if an employee is “called back” to work, the time counts as work 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.

Whether travel time is paid work time or not depends on several factors, including whether the employee is performing any work on the trip, and where the travel originates. We will use the example of Beth, a bank teller, to illustrate the differences in work time and non-work time.

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. Commutes are not considered work time for which workers are entitled to pay. When an employee uses a company vehicle to travel from home to work (or engages in activities incidental to the use of the vehicle such as filling the vehicle with gas), the travel time 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 such duties from paid work.

Example: Beth commutes from her suburb to downtown every day, which takes her 45 minutes. She does no work on the trip. This time is not paid time. If she uses a company car, and fills the car with gas during some of her trips, her commute is still not considered work time, as long as there is an agreement with her employer that this is not considered paid work.

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.

Example: Beth is asked to spend the day in a work-related training session at a bank ninety minutes away from her home in the suburbs, 45 minutes more each way than she normally spends commuting to work. Of the three hours she spends commuting that day, ninety minutes is paid time, while the other ninety minutes is not paid time, since it can be deducted as the time she would normally spend commuting on a work day.

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

Example: After Beth arrives at her main branch office in the morning, she is asked to work at two other local branches to cover lunch breaks and an employee on vacation. The 15 minutes she spends traveling from one branch office to the next to perform work is work time for which Beth must be paid.

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 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 on an airplane, train, boat, bus, or automobile.

Example: Beth is required to attend a two-day training session in another city. Her normal workday is 8:30 a.m. to 5:00 p.m. She is required to leave at 3:00 p.m. and travel with other employees by car for four hours to reach the training session. On that day, she would be paid for two hours of work time (3:00 to 5:00 p.m.). If her employer chooses not to pay her for the other two hours spent riding as a passenger, it is a technical violation of the law, but not something that the Department of Labor will file a lawsuit against her employer to recover. If Beth drives the vehicle, instead of riding as a passenger, then her time is considered work time, unless she chose to drive instead of taking public transportation. In that case, her employer can choose to pay her for the time she spent driving, or the time she would have spent on public transportation, whichever is less.

Probably, even if it occurs outside your normal work hours. If you are a nonexempt employee, covered by the FLSA, most training time is considered work time for which you must be paid. All training time is work time if it occurs during an employee’s regular shift, or if it is required by the employer.

Training time does not have to be counted as work time only if four conditions are met:

It occurs outside of your normal work schedule;It is truly voluntary (this mean your employer cannot directly or indirectly pressure you to attend, and there can be no repercussions if you choose not to attend;It is not directly related to your current job (it is not designed to enhance the skills you use for your current job, but instead is designed to qualify you to get a new job); andYou do no other work during the training.

Sometimes when you arrive for work, at the time your employer directed you to be there, you are sent home before you perform any work. The FLSA does not require an employer to consider any of this time as hours worked or to give you show-up pay.

However, some employers and employees have informal or contractual agreements (Collective Bargaining Agreements) which require a set number of hours be considered hours worked. Some states also have such a requirement. If you need further information about whether your state requires show-up pay and/or wish to report a potential state law violation, then you may wish to contact the agency in your state which handles wage and hour/labor standards violations, listed on our site’s state government agencies page.

The FLSA is enforced by the Wage-Hour Division of the U.S. Department of Labor. Wage-Hour’s enforcement of FLSA is carried out by investigators stationed across the U.S., who conduct investigations and gather data on wages, hours, and other employment conditions or practices, in order to determine whether an employer has complied with the law. Where violations are found, they also may recommend changes in employment practices to bring an employer into compliance.

It is a violation to fire or in any other manner discriminate against an employee for filing a complaint or for participating in a legal proceeding under FLSA.

Willful violations may be prosecuted criminally and the violator fined up to $10,000. A second conviction may result in imprisonment. Employers who willfully or repeatedly violate the minimum wage requirements are subject to a civil money penalty of up to $1,000 for each such violation.

The FLSA makes it illegal to ship goods in interstate commerce which were produced in violation of the minimum wage, overtime pay, child labor, or special minimum wage provisions.

To contact the Wage-Hour Division for further information and/or to report a potential FLSA minimum wage violation, call:

Toll Free: (866) 4USWAGE (866-487-9243)
TTY: (877) 889-5627
(available Monday-Friday 8 a.m. to 5 p.m. Eastern Time)

You may also contact your local WHD office.

If you need further information about your state’s wage and hour laws and/or wish to report a potential state law violation, then you may wish to contact the agency in your state which handles wage and hour/labor standards violations, listed on our site’s state government agencies page.

There are several different methods under the FLSA for an employee to recover unpaid minimum and/or overtime wages; each method has different remedies.

Wage-Hour may supervise payment of back wages.The Secretary of Labor may bring suit for back wages and an additional penalty, called “liquidated damages,” which can be equal to the back pay award (essentially doubling the damages) if an employer willfully violated the statute.An employee may file a private lawsuit for back pay and an equal amount as liquidated damages, plus attorney’s fees and court costs. An employee may not bring a lawsuit if he or she has been paid back wages under the supervision of Wage-Hour or if the Secretary of Labor has already filed suit to recover the wages.The Secretary of Labor may obtain an injunction to restrain any person from violating FLSA, including the unlawful withholding of proper minimum wage and overtime pay.

Your state law may have different methods for recovery of unpaid wages, and different remedies to be awarded to those who succeed in proving a violation. For further information, please contact the agency in your state which handles wage and hour/labor standards violations, listed on our site’s state government agencies page.

To file a complaint for unpaid wages under the FLSA, you may either go to the WHD, which may pursue a complaint on your behalf, or file your own lawsuit in court (which may require you to hire an attorney).

Do not delay in contacting the WHD or your state agency to file a claim. There are strict time limits in which charges of unpaid wages must be filed. To preserve your claim under federal law, you must file a lawsuit in court within 2 years of the violation for which you are claiming back wages, except in the case of an employer’s willful violation, in which case a 3-year statute applies. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

Your state wage law may have different deadlines for recovery of unpaid wages. For further information, select your state from this list.