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ARE YOUR EMPLOYEES REALLY WORKING WHEN THEY'RE NOT WORKING?

10/13/2010 -

“O, you work all day for the sugar in your tay, all around the railway, so drill ye tarriers drill, and fire, and blast . . .” -- Traditional Irish/English folk song.

Tales from O’Seay’s Fables . . .

It was one of those crinkly autumn days, the kind that’s crispy cool in the morning before becoming toasty warm later on, as Helios assumes his rightful place in the heavens. Sarah came to work a little early on this particular day, arriving some 30 minutes before her regular starting time. She went into the kitchen, made a pot of coffee for herself and the rest of the staff then, fortified, sat down to read the morning paper. After a moment, it occurred to her that she may have left an important document on her desk last evening, so she ambled down the hall to her work area, shuffled through a folio of papers, found the errant memo and placed it in the proper file. “While I’m here,” she thought, “I might as well power up my computer.” So she removed the dust cover, pushed the “Power” button and watched as the rush of blue and gold and red infused her computer with the cacophonic cache of electronic intelligence. Satisfied, she went back to her coffee and the daily news. Promptly at 8:00, her regular starting time, she clocked in on the new time recording system and went to work as usual. This routine was not unusual for Sarah, as she often came to work early. Was Sarah really working? Or was she just enjoying some quiet time before the beginning of the work day?

Working Time according to the Department of Labor

Key Management Principle – Department of Labor regulations don’t always make good sense. In the example of Sarah, it would seem logical to most of us that she was not working. After all, she was making coffee, probably enjoying a fresh pecan Danish from Charlie’s Bakery and reading the morning news. The idea of briefly going to her desk to check on a document and turn on her computer was incidental to her morning routine and certainly did not take more than a few minutes. However, the Department of Labor has a different view and declares most assertively that she was, indeed, actually working and that she must be paid for this time. In fact, the Department of Labor says that she began work when she made the pot of coffee that other employees would drink. If she had made coffee only for herself, she would not have been working, but making a pot of Joe for other employees . . . well, it triggers the work day. In addition, when she went to her desk to check on the document and power up her computer, this activity in itself would have triggered her work day (in these days of high tech vocabulary, we don’t “turn on” a machine, we “power it up” . . . but I digress . . .).

The Department of Labor defines working time is any time an employee is “suffered or permitted to work.” This means that you must pay an employee for all work time, even if you didn’t authorize it, and even if you didn’t know about it. If an employee handbook reads, “Employees may not work overtime unless authorized and if they do, they will not be paid for it,” this would be a Wage and Hour violation. It’s better to have language that such as, “Employees may not work overtime unless authorized in advance by their supervisor. Employees who work unauthorized overtime will be subject to disciplinary action.”

Seay Management Recommendation – If an employee works unauthorized regular time or overtime, you must pay the employee for this time but you should discipline the employee with a written reprimand. If it occurs on a continuing basis, you may have grounds to dismiss the employee for violation of policy. Management has the right to establish working hours and working schedules and employees are required to abide by those schedules.

Here are some other examples where employees are really working when they aren’t working. These recommendations apply to non-exempt employees only. Exempt employees are different, in that they are paid by salary, irrespective of hours worked.

Meal Periods – The Wage and Hour regulations have no requirement to grant a meal period to employees over the age of 18. However, if you do grant a meal period, and if it is to be unpaid, then it must meet two requirements – (1) the meal period must be completely uninterrupted and (2) it must be at least 30 minutes long. For example, if you walk into the break room during a meal period and ask your assistant a question, that interrupts the meal period and makes the entire meal period compensable. And, if the meal period is 25 minutes long, rather than 30, this makes the entire meal period compensable, also.

Seay Management Recommendation – All non-exempt employees should check out and in for meal periods and the time record should reflect a full 30 minutes of uninterrupted time. This is a major stopping point for a Wage and Hour investigator, if he or she is investigating your payroll for Wage and Hour compliance.

Preliminary and Postliminary Time – “Preliminary” time is time an employee spends working before the work day begins. In the example above, Sarah’s activity was “preliminary” work time. “Postliminary” (a word only a bureaucrat could love) means time an employee spends working after the work day ends and after he or she has clocked out. For example, postliminary working time could occur when an employee clocks out but “hangs around” for a while after work and answers question, helps other employees or otherwise engages in work. Or, an employee who has not completed his or her work and is required to clock out and continue working is engaged in postliminary work.

Seay Management Recommendation – include in your handbook a policy that prohibits preliminary and postliminary work and instruct your supervisors not to allow employees to work “off the clock.”

Travel Time – There are lots of rabbits to chase here. For example, if an employee leaves his or her home and travels to a remote location, the work day begins when the employee reaches the first work location, even if it is remote. However, if an employee comes to the office first, then travels to the remote location, the resulting travel time is compensable work time. Similarly, if an employee leaves home and drives his car to a remote location, that is probably not work time; but if the employee picks up other employees and drives them to the same remote location, that is compensable work time.

Seay Management Recommendation – travel time is always a sticky wicket and conclusions are often subtle. In addition, compensable travel time can be different on the weekends. Non-exempt employees who go to the Post Office or Federal Express at lunch or before or after work, or who deliver or pick up packages, are engaging in compensable work time. Call your Seay Management consultant with any questions on travel time.

Homework – If an employee takes work home at night, this is called “homework” and is compensable work time. Some employees may take work home and not tell you about it; nevertheless, it is still compensable work time, according to the Department of Labor. A further complication arises with recording work time at home.

Seay Management Recommendation – Include in your handbook a policy stating that employees may not take work home at night, unless this is authorized in advance. If so, the employee must record the exact time that he or she is working at home and report this to management the next day.

See if this idea works . . .

In the case of Sarah and other employees who may be coming to work early, management has the responsibility to monitor when employees come to and leave from work and to insure that work time is recorded correctly on the employees’ time records. A supervisor should periodically check to make sure employees aren’t coming in early and inadvertently performing work and Sarah should be told that, if she comes in early, she should go directly to the break room and she should not go to work area until her regular starting time. This policy should be in your employee handbook. So, if you have any tarriers out there engaging in activity that might be compensable work time, please call or email us and we’ll work through the issue with you so that you’ll have the right answer. And visit our web site at www.seay.us. We appreciate having you as a friend and client of our firm and look forward to talking soon.



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