By: Katherine Muniz Jul 08, 2016

Hours Worked: What’s Compensable in a Day’s Work?

Determining what should be paid for and what shouldn’t in a regular work day may not seem difficult. For instance, the daily commute to and from work isn’t compensable, and a few minutes chatting with colleagues at the water cooler tends to go by un-penalized. However, have you ever stopped to think why?

Instinctually you might say ‘common sense,’ but the reasoning is more complex then that. In determining what is and isn’t compensable, we rely on the courts’ rulings, the FLSA, and the Portal-to-Portal Act of 1947. The statutory provisions contained in the Portal-to-Portal Act of 1947 (made as an amendment to the Fair Labor Standards Act) (29 U.S.C. § 251.) clarify and narrow the scope of what is legally constituted as compensable working time in a work day.

The Portal-to-Portal Act bases compensable work time on several aspects that include the degree of control the employer has over the employee’s time, and all the time an employee must be on duty or at the workplace. So what is and isn’t compensable in the scheme of a day’s work? We break it down, here. 

Preliminary and Postliminary Activities

Unless a contract, custom, or practice holds, certain travel and walking time and other similar preliminary and postliminary activities performed prior or subsequent to the workday are eliminated from working time. Time spent commuting for instance, is not considered as on-the-job time. 

Additionally, the time employees spend washing themselves or changing clothes before or after work are also not considered as on-the-job time unless “a workplace requires specialized protective gear or other garb that is impractical to don off the premises; nor does it include time spent in a regular commute to the workplace.”

Additionally, the time employees spend washing themselves or changing clothes before or after work are also not considered as on-the-job time unless “a workplace requires specialized protective gear or other garb that is impractical to don off the premises; nor does it include time spent in a regular commute to the workplace.”

Waiting time 

‘Waiting time’ essentially refers to periods of inactivity on the job, either because the employee is engaged to wait (entitled to compensation) or waiting to be engaged (not entitled to compensation). Essentially, the determination is made based on the circumstances of the scenario.

Typically, if the employee is waiting for work, is ready to serve, and is bound to stay on-the-job and cannot use time effectively for his or her own purposes, the employee is entitled to compensation for waiting time. Here are four examples cited from the FLSA: 

Typically, if the employee is waiting for work, is ready to serve, and is bound to stay on-the-job and cannot use time effectively for his or her own purposes, the employee is entitled to compensation for waiting time. Here are four examples cited from the FLSA: 

  • A stenographer who reads a book while waiting for dictation
  • A messenger who works a crossword puzzle while awaiting assignments
  • A fireman who plays checkers while waiting for alarms
  • A factory worker who talks to his fellow employees while waiting for machinery to be repaired

In order for wait time to be compensable, the employee must demonstrate they are ready to serve. Additionally, the rule also applies to employees who work off-premises. “For instance, a repair man is working while he waits for his employer’s customer to get the premises in readiness. The time is worktime even though the employee is allowed to leave the premises or the job site during such periods of inactivity. 

The periods during which these occur are unpredictable. They are usually of short duration. In either event the employee is unable to use the time effectively for his own purposes. It belongs to and is controlled by the employer. In all of these cases waiting is an integral part of the job. The employee is engaged to wait.”

Travel Time

According to Attorney Michael A. Semanie, “Ordinary home-to-work and work-to-home travel is not counted as being compensable hours worked. However, if the employee is required to travel to a certain location for a specific one-day assignment, the time spent traveling (less the normal commute time) is compensable work time. Likewise, where traveling from jobsite to jobsite is part of the employee’s principal activities, that time must be paid as work time.

Finally, where an employee is required to travel away from home, the time that cuts across the employee’s normal working hours for both regularly scheduled work days and non-scheduled work days counts as time worked. However, time spent in traveling away from home that is outside of the employee’s regular working hours is not typically compensable time.”

According to NOLO, under certain circumstances, an employee can request to be paid for their travel time commuting in cases whenan employee is required to go to and from their normal worksite at odd hours in emergency situations. 

When employees work longer than requested

Even if an employer has a rule that employees are only to perform work up for a specified number of hours, the employer cannot accept the benefits of work performed by employees without compensation. Making the rule known is not considered sufficient; it is management’s duty to enforce that rule, and management must make every effort to do so.

When traveling in an employer vehicle

The use of an employer’s vehicle for travel by an employee is eliminated from working if the use meets the following conditions:

  • the use of the employer’s vehicle for travel is within the normal commuting area for the employer’s business
  • and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or the representative of such employee.

Rest Periods

Short rest periods (between 5 minutes to 20 minutes) are common in industry, promote the efficiency of the employee, and are customarily paid for as working time.  

Meal Periods

Bona fide meal periods are not worktime, and the employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is a long enough for a bona fide meal period. Meal periods for coffee breaks, or time for snacks are categorized as a rest period, which must be counted as hours worked.

Lectures, Meetings and Training Programs 

Attendance at lectures, meetings, training programs, and similar activities need not be counted as working time if the following four criteria are met:

  • (a) Attendance is outside of the employee’s regular working hours;
  • (b) Attendance is in fact voluntary;
  • (c) The course, lecture, or meeting is not directly related to the employee’s job;
  • (d) The employee does not perform any productive work during such attendance.

Involuntary attendance nullifies the basis on which these activities can be considered not worked time, similarly as in cases where employees are led to believe that the continuance of their employment will be adversely affected by nonattendance.

Training directly related to the employee’s job is considered time worked. For instance, a stenographer given a course in stenography, provided by her employer, is engaged in an activity to make her a better stenographer; this is considered hours worked.

However, a course taken up outside work, such as a bookkeeping course, is not working time, even if the course incidentally improves her skill in doing her regular work.  For the purposes of providing a brief overview on routine work-day occurrences that may and may not be paid, this article has highlighted different work-related activities and circumstances from Title 29, Part 785 of the Code of Federal Regulations.

For more information on additional situations and scenarios, consult the U.S. Wage and Hour Division Regulations Part 785: Hours Worked

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Katherine is a New York-based digital writer who joined Fingercheck in 2015. She promotes Fingercheck through the power of the written word. She graduated from Fordham University with a B.A. in Communications and Media Studies with a focus on Journalism. Connect with her on LinkedIn

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