Hours Worked Overtime ClaimEmployees
are required to be paid for every hour (and fractions of hours) they actually work for their
employer. Because many large corporate employers fail to count all hours worked by employees
during a workweek, such employers may be liable to pay back unpaid wages overtime.
Work
Time
Work time is broadly defined in
favor of the employee under the FLSA. All hours and fractions of hourly time which an
employee works or engages in job-related tasks often qualifies as "work time," and counts for
calculating hours week, and thus overtime. This includes the employee's regular "on the
clock" work time, plus "off the clock" time spent performing job-related activities (which benefit
the employer).
Generally, under the
employee-favorable FLSA, all time an employee is required to be on the employer’s property is
considered work time, including:
- All regular shift time
- Break time
- All time an employee does work-related
activities permitted by the employer
Time worked for an employer off
the employer’s property generally qualifies as work time under the FLSA, including work performed
at home or offsite.
Meal time, such as lunch, is
generally not considered work time, unless it is a working lunch, or worked is performed during
lunch, e.g. eating lunch at your desk and performing work during the lunch
period.
Break
Time
Break time must be counted as work
time where the breaks are 15-20 minutes or less. Employers must count these break times as "hours
worked" and must pay for the time. Employers may not add the break times together and take a
deduction from work time for this total time.
For example, an employee who works
from 9:00 to 5:30 (with a 30 minute lunch which can be deducted) and who gets two 15 minute breaks
cannot add the two 15 minute breaks together and say the employee only gets paid for 7.5 hours that
day. Because breaks of short duration are considered as "work time," the employee should get paid
his/her full 8 hours for that day.
Volunteer Time
Individuals may volunteer to work
for charitable or non-profit organizations without being considered as employees. However,
employees may not "volunteer" to do similar work for their same employer without the time being
counted as work time. For example, an ambulance driver for a private ambulance service cannot
volunteer to pick up additional shifts on the weekend as a driver. Doing the same job or one very
similar to the one the employee performs for the company will not be considered as volunteer time,
but will be work time instead.
On-Call Time
Time that an employee is "on-call" may, under some
circumstances, be considered as work time. The use of on-call time is fairly widespread.
Generally, if the employee is on-call but can effectively use his or her time for their own
purposes, then the time will not be considered work time. Courts look to a variety of factors
to decide if on-call time is work time.
For example, the frequency of the call outs, the
expected response time, any restrictions on how far an employee may travel away from home, the
ability of the employee to switch shifts, and the duration of the call out.
Meal Time and Lunch Break
or Working Lunch
While employers do not have to give employee lunch
breaks, the breaks must be at least 30 minutes long before the employer can refuse to pay for
the time. An employee who does not get a full 30-minute lunch break, free from any work
requirements, will likely have a claim for unpaid wages.
Thus, an employer that automatically deducts 30
minutes every day from an employee's pay for lunch may be violating the FLSA where the employee
did not take lunch or took a lunch shorter than 30 minutes. An employee who "works through
lunch" is working and that time must be counted. An employee who "eats a sandwich at the desk,"
and who still performs some work (like answering the phone), is working through
lunch.
However, a meal period need not be counted as work
time if the employee is merely expected to "remain available" during the meal period but is
otherwise relieved of active work duties. So, for example, a meal period may be time not worked
even if the employee is not permitted to leave the facility, or expected to remain in
uniform.
Paid Time Off and Sick
Time
Employers often give employees paid time off. This
is a general category of leave time that includes vacation, holidays, sick days, etc. Time away
from the job, when no work is being performed by the employee, is not work time. Thus, even if
this time is considered "work time" for some other purpose (such as pension accruals,
seniority, or collective bargaining agreement), it is not time the employer has to count as
'hours worked."
For example, if an employee works 10 hours a day
on Monday-Wednesday, takes Thursday off, and works 8 hours on Friday, she has only worked 38
hours that week. By contrast, if she had actually worked 10 hours on Thursday, she would have
had 48 hours and been entitled to overtime pay for the 8 hours of work over 40
hours.
Off The Clock -Work
Overtime
Many FLSA lawsuits have involved employers failing
to include time spent by employees performing work activities outside of their normal shifts.
Some employees, for example, may "come early" and start working before the official start time
of their shifts.
Such 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 as are
pre-shift meetings like safety meetings. Time spent setting up equipment before the official
start time of a shift is work time. Some employees may similarly "stay late" after shifts
performing work; 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.
Similarly, 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).
Unpaid Overtime
Lawsuit
If you worked for a large corporation or company,
and believe your employee rights or overtime rights were violated, then contact us for a confidential review of your circumstances. We work
with established class action law firms which may be able to help you through your employment
claim.
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