Federal Laws and Regulations
What is “work time”?
Work time is generally defined as time employees actually spend at work or are required to be on duty. The Fair Labor Standards Act (FLSA) of 1938 establishes the difference between exempt and non-exempt employees, sets the federal minimum hourly wage and covers other workplace practices.
EXEMPT VS NON-EXEMPT EMPLOYEES
Simply stated, exempt employees are salaried – paid a set amount regardless of the number of hours worked each week. As a rule of thumb, exempt employees are not paid overtime and are not docked for time away from work. FLSA defines criteria to qualify for exempt status.
Non-exempt employees are hourly – they are paid for hours worked, time and a half for hours over 40 each week and usually are not paid if they are not at work. Questions arise about whether non-exempt employees are to be paid under certain circumstances – whether work-related activities are considered work time and, therefore, hours to be paid.
WHAT FLSA DOES NOT REQUIRE
There are a number of employment practices which the FLSA does not regulate. For example, the FLSA does not require:
Vacation, holiday, severance, or sick pay
Meal or rest periods, holidays off, or vacations
Premium pay for weekend or holiday work
Pay raises or fringe benefits
Limits on the number of hours or work for employees age 16 or older
A discharge notice, reason for discharge, or immediate payment of final wages to terminated employees
Pay stubs or W-2 forms (IRS requires the W-2s).
Wage payment or collection procedures for an employee's usual or promised wages or for commissions in excess of those required by the FLSA.
However, some states do have laws covering some of these issues, such as meal or rest periods or discharge notices.
Matters which are not covered by the FLSA are generally for agreement between the employer and the employees or their authorized representatives.
WORK HOURS
In general, employees are paid for the hours they are on duty, even if they go to work before their scheduled start time or work past their scheduled quitting time. If you require specific dress, such as uniforms, and do not allow employees to take this apparel home with them, you must pay for time spent putting on and taking off uniforms.
MEAL OR REST BREAKS
Although FLSA does not require lunch or rest breaks, it does specify how they are to be handled if you offer them. Coffee or rest breaks of 20 minutes or less must be paid. Meal breaks of 30 minutes or longer are not paid – unless employees do work duties during lunch breaks, such as taking telephone calls, stopping to answer employee or customer questions. In this situation, they must be paid for the lunch break. Usually, lunch breaks are not counted toward the normal hours of work – unless governed by state law or a labor agreement.
TRAVEL TIME
Daily commutes between home and work are not considered work time and need not be paid. However, travel during regular working hours between stores, for deliveries, to help customers, attend work-related meetings and the like is on the clock.
Out of town travel is different. Trips to and from the airport are considered commutes and not subject to hourly pay. Other travel time is considered work time. If the trip lasts more than one day, travel time during regular work hours is considered work time – any day of the week.
TRAINING TIME
Training meetings during regular work hours are considered work time. If the employee chooses to take training courses on his/her own time, it is not work time.
OTHER WORK-RELATED ACTIVITIES
If you ask employees to participate in any kind of work-related activities outside of normal working hours, they should be paid for the time. This could apply to store meetings, special events, charitable or civic events, time spent in employment meetings (such as performance evaluations) or time waiting for or receiving medical care at work or at your direction.
DISCLAIMER
The information provided here is designed only to alert retailers of possible obligations under the new DOL regulations regarding eligibility for overtime pay. It is not intended as legal or compliance advice. More information is at www.dol.gov/elaws/esa/flsa.