Pay For All Work Time, Sure… But What Counts as Work Time?

punch clock and time cards

We talk a lot here about how important it is to pay workers for all their “work time” — and to properly calculate overtime — to avoid back pay awards, fines and penalties under the Fair Labor Standards Act (FLSA) and other federal and state laws. But have you ever wondered what time falls under the definition of “work time”? It may not be as clear-cut as you think.

I mean, obviously, the time your employees spend on productive labor, whether on-site or remotely, counts as work time. But there are many other activities that can happen during the day, some of which might need to be counted as work time, others not.

For instance, if an employee clocks in early, do you have to count the time they’re hanging out in the break room waiting for their shift to start? Do you have to pay an “on-call” technician for time spent watching TV while waiting for a possible call-back? What about if the equipment your employees are working on breaks down, or if the power goes out temporarily — is the time workers are standing around waiting to resume normal operations considered work time?

Get it wrong, and you could find yourself in hot water with both the federal Department of Labor and with your state labor board.

Waiting vs. Stand-by vs. On-Call

Fortunately, the Dykema Gossett PLLC law firm has answered some of these questions in this article on their blog: An Employer’s Guide to Telling Time

The article is a concise guide to various types of activities that could go on during the day, and whether they should be counted as work time or not.

For instance, did you know there’s a difference between waiting time, stand-by time and on-call time? There is! And when totaling work hours, it makes a difference what kind of time you’re talking about as to whether you need to count it toward the employee’s time.

  • Waiting time happens when an employee comes in early or hangs around after the end of their shift. They aren’t working — maybe they like to have a cup of coffee before starting their day, or perhaps they’re waiting for their ride to pick them up. In any case, they aren’t working, so the time doesn’t count as part of their work time.
  • Stand-by time occurs when employees are at their posts, ready for work, but there’s no work to be done. This is what you call it when the equipment breaks down or the power goes out. The workers are waiting, ready to resume work as soon as the repairs are completed. Generally, you’ll need to count this toward their work time.
  • On-call time is when employees (usually off-site) are required to be ready to come back to work on short notice when needed. This one’s a bit trickier — it depends on what the employee is able to do while waiting for the notification as to whether the time should be paid work time. If they have to stick close to the office or even stay on-site, the time is considered work time. If they can leave and pursue their own personal activities, simply making sure you can contact them if you need them, then the time is likely not compensable.

There are several other situations covered in the original article. As always, the advice in these articles is general and may not apply to your specific situation.

Figuring out what time counts as “work time” is particularly tricky, and an issue that the courts have wrestled with on many occasions. Get it wrong one way, and you’re paying people for non-work time. Get it wrong the other way and you’re potentially on the hook for back wages and penalties. As usual, I encourage you to check with your labor law advisor to make sure you’re counting all the time you should — and that you’re not counting time you don’t need to include.

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