Calculating Overtime Pay
You are most likely considered a covered employee if you are not a contractor, or if you do not qualify for a Fair Labor Standards Act (FLSA) exemption.  It is required for covered employees to be paid for any hours they have worked in a workweek, including overtime hours (any hours worked that exceed 40 hours in one work week.)

The time that you are required to be on duty, on the employer’s property, or at any other agreed place of work, is considered “hours worked”.  Hours worked also includes any extra time that you are permitted to, or required to work.  For example, spending time to complete work that was not requested by your employer, but is permitted, would be considered hours worked.  Your employer is required to compensate you for any hours worked.  It is the responsibility of the employer to assure that their employees only perform work that they (the employer) want performed.

Some off-the-clock violations that employers commonly do:

•         Refusal to pay hourly employees for time spent corresponding via phone or email while away from the office, or for other activities pertaining to their work responsibilities outside of the         worksite.
•         Compensating hourly employees solely based on their scheduled work hours, and not by evaluation of actual hours worked.
•         Instructing hourly employees to submit or record only a specific number of hours worked per week or per day, when the employee is actually working more hours.
•         Instructing an hourly employee to clock out, and continue to work.
•         Paying employees in a call center only for time spent on the phone, and not compensating the employees for other time spent on work related undertakings.  These undertakings may               include starting up your work computer or computer applications, or corresponding with work related emails.

Note: Typically, an employee cannot surrender their rights under the FLSA by any type of written or verbal agreement.  This include which hours are to be viewed as hours worked.

Meal Periods

According to federal law, an employer is not required to provide breaks for meals to their employees.  Although, most employers do.  Usually, meal breaks are not considered hours worked, and therefore do not need to be paid.  Thirty (30) minutes is a standard amount of time for a meal break.  Generally, time shorter than 30 minutes, must be compensated as if it were hours worked.  Additionally, during your meal break, you must be fully released of all work duties.  If you are obligated to perform any work responsibilities during your meal break, that time will most likely be considered hours worked, and you must be compensated.  Many states, such as California, have laws that hold employers responsible for providing specific meal and rest breaks.  If said laws are not upheld, the employer could be responsible for compensating the employee accordingly.

Rest Breaks

An employer, under federal law, does not need to offer rest breaks to its’ employees.  Although, most employers do.  Rest breaks are typically between 5 and 20 minutes, and are considered hours worked. Therefore, time spent on a rest break must be compensated.

SickTime, Holidays, and Vacations

If your employer permits you to take time off due to a holiday, because you are sick, or for a vacation, even though it may be paid, it is not considered hours worked according to federal law.  When calculating your time to determine whether or not you are eligible for overtime pay, time taken off should not be considered in deciphering your total hours worked.

Homeworkers

An employee who is compensated by the employer to perform their job functions from their home, is considered a homeworker.  Time spent preparing work materials, organizing materials that are connected to work, and travel time to and from the employer’s worksite to exchange new or completed assignments, is considered hours worked.  Although, any time spent for personal use, such as sleeping, regular house cleaning, or eating, is not typically considered hours worked.

Training Programs, Meetings and Lectures

Depending on the circumstance, attending training programs, meetings, lectures, or other activities similar to these, may not be considered hours worked.

Unless all four of these criteria is fulfilled, your attendance in training programs, meetings, lectures, or comparable activities may not be considered hours worked:

1. The activity is held and attended outside of your normal working hours
2.  The lecture, course, meeting, or training program, is not directly related to your job.
3.  Attendance is voluntary, and you participate by choice
4.  You are not performing any work on behalf of your employer while attending the event

Additionally, the following circumstances are not considered hours worked:

1.  If you choose to participate in a course at an independent trade school, college, or school, outside of work hours, the time is not considered hours worked.  Even if the classes are relevant to your work or if your employer pays for the course, it is not considered hours worked.
2.  If you use time outside of work in a supplemental classroom in combination with an apprenticeship program, it will most likely not be considered hours worked.
3.  If your employer offers an educational or instruction based program, similar to a course offered by an independent institution of education, in order to benefit the employees, and you attend voluntarily outside of work hours, it is not considered hours worked.  Even if the courses are relevant to your job functions, or if the course is paid for by the employer, it is not considered hours worked.

Time Spent On-Call

Your time may be considered working “on-call” if your employer requires you to remain on or a certain distance near your employer’s premises.  This requirement put in place by your employer inhibits you from using your own time productively for yourself, and you may be eligible for compensation.  For example, times when the volume of calls is so high that you cannot use your time on-call for your own purposes.  Additionally, all time used to correspond via phone or email is hours worked.

 On Duty Waiting Time

If you are on duty, and are waiting for work to come up, or for repairs to be completed, you are involved in waiting, and time spent doing so usually constitutes hours worked.  This applies to a situation where you work offsite from the employer’s property.  On duty wait time is considered hours worked, even though you are allowed to exit the worksite if you are unable to utilize periods of down time for personal or work purposes.

Off Duty Waiting Time

Off duty wait time refers to the time you are waiting to be involved.  It is not considered hours worked, unless these 4 requirements are met:

1.  You are fully released from your work duties.
2.  The time spent waiting is extensive enough that you could utilize the time efficiently for personal uses.
3.  You were told prior to arrival by the employer that you are authorized to leave.
4.  Your employer informs you of the specific time that you are required to return to your job duties.

Show-Up Time

If you are present at work at the specific time your employer requested you to arrive, but you are sent home before you are able to perform any work, said time is generally does not constitute hours worked.  Therefore, your employer is not required to compensate you for said hours.

Preliminary and Postliminary Actions

Preliminary actions include any activities that are performed before beginning your primary work duties.  Postliminary actions are activities that you perform after your primary duties.  Primary work duties are activities that you are specifically employed to accomplish, and are essential to the employer’s business.  Your employer is required to compensate you for time spent performing primary work duties.  Time spent completing preliminary or postliminary job duties may be eligible to be compensated, depending on the scenario.  Typically, travel time to and from the worksite is not eligible for compensation.

Regular Travel from Home to Work

Time spent from getting to work from home, and returning to your home after work, is generally not compensated as time worked.  Although, if you do complete primary job functions at home prior to leaving for work, your travel time from home to work could be compensable.  The same rule applies if you perform primary job functions at home after the workday has been completed, in which your travel time home may also be considered time worked.

Travel Time Spent on a One-Day Assignment in Another City

If you normally work at a specific worksite in one city, and you are assigned a one day special assignment in a different city, but will require you to return home the same day, the time you are traveling back and forth to the worksite is usually considered time worked.  Generally, time spent traveling on a special assignment day is compensated.  Although, your employer could deduct the time usually spent on your daily commute from the time spent commuting to the special assignment.

All Day Travel

Time that is spent traveling as a primary function of your job, for instance traveling from one worksite to another worksite for the same employer, is usually considered time worked.  Therefore, said time is generally compensable.

Traveling Away from Your Home Community

Travel for work that requires you to stay overnight, away from your home, is considered travel away from your home community.  This type of travel time could be compensable when it overlaps with your regular workday.  Additionally, said time may be compensable if the time spent working or traveling is not within of your usual working hours.  Although, time spent traveling away from your home community as a passenger, not within your normal work hours, is usually not considered compensable time worked.

Compensatory Time

This time is also known as “Comp Time”.  It occurs when an employer permits an employee to use days off, instead of receiving overtime pay.  Using comp time instead of overtime pay, is permitted under certain circumstances, or when you are a government employee.  Some states allow private employers to offer comp time instead of offering overtime pay.

Usually, non-exempt employees who work for private companies or private employers, are entitled for overtime pay in the weeks they work overtime hours.  Private companies or private employers are not permitted to offer comp time to non-exempt employees instead of offering overtime pay, and they cannot require said employees to accept comp time at a future date.  It is required that non-exempt employees be paid for overtime during the week in which the work has been completed.  An employee is required to record all time worked correctly.  Both amount of hours and days worked must be accurate.  If the employee’s hours result in overtime pay for the work week, that compensation for overtime hours must be paid.  A private company or private employer cannot request from an employee to falsify their time in attempt to avoid paying for overtime hours.

We welcome your call today at 952-361-5556 (or fill out the free case evaluation form below) to help you through the legal issues of your Off-the-Clock Work  case.

Attorney Practicing In This Area

Kyle Kosieracki