Hours Worked Overtime Claim

Employees 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.