What You Need to Know About On and Off the Clock Hours
It’s not too difficult to determine if you must compensate nonexempt or hourly employees for working off the clock. The answer is maybe.
We’re not trying to be cute or confuse you. After all, the Fair Labor Standards Act (FSLA) clearly spells out what constitutes “hours worked” on their Fact Sheet #22. Simply put, working off the clock, or labor that is not compensated or does not contribute to an employee’s overtime pay, is illegal. Below we’ll outline some of the situations that could land you in trouble.
Know Who Is Covered Under the FSLA
First, it’s important to know which types of employees are covered under the FSLA and which are not. Employees are entitled to payment for all regular work and for overtime work (any that exceeds 40 hours per week).
Mark Weaver, founder of Colorado-based Open Door Organizational Solutions LLC says, “If you reference Colorado’s minimum wage order #34 Fact Sheet, it will tell you that four industries are covered: retail and service, commercial support service, food and beverage, and health and medical.” Employees covered under the FSLA must receive at least minimum wage and a minimum of time and a half when they go past 40 hours in a single workweek.
The rules do not apply to exempt employees who receive a set salary regardless of the number of hours worked, public sector employees, independent contractors, and industries such as construction, manufacturing, and wholesale.
Remember, this is for Colorado. Check with your state’s Department of Labor to ensure your company is compliant with current law. You can find the information to your state’s department of labor by clicking here. You can also ask Journey, and we will be happy to assist you directly or connect you to a local trusted HR professional in your area that can dig into your situation specifically and make sure you’re on the right track legally.
What Type of Work Counts?
Typically, hours worked (whether regular or overtime) are the time an employee needs to be on duty or present at the workplace in order to complete job requirements. Tasks that employees must preform before or after the actual work are compensable. Here are a few examples:
- Site preparation before a shift
- Moving supplies and equipment
- Post-shift cleanup
- Mandated after-hours training
- Travel time (We will outline this in further detail later.)
- Revising a project during non-work hours at the request of the supervisor
While the FSLA does not make provisions for meals and breaks, some state do. Check with your state’s statutes to determine what is allowable.
The time it takes for an employee to travel from home to work is on their dime. Employers are not required to compensate employees for this time.
If a one-day assignment takes the employee to another city, the time spent traveling to and from that assignment is considered work time. The employer does have the option to deduct the time that the employee would normally spend commuting to work.
Time spent traveling from a job site or to job-related appointments that are part of the employee’s principal activity is compensable.
Overnight travel time is compensated when done during regular working hours, but not if it takes place on nonworking days. For instance, if an employee travels to a conference on Sunday evening in order to start early Monday morning, that travel time is not compensable.
After Hours Communication
A common question Journey Payroll Specialists receive is, “If employees check their emails after hours, do I have to pay them?”. When an employee is checking emails or answering the phone during off hours, that can put your company at risk for compliance violations.
You should familiarize yourself with the term “suffer or permit to work,” meaning that “if an employer requires or allows employees to work, they are employed and the time spent is probably hours worked.” Taking that one step further, time spent doing work that is not specifically requested by the employer, but still allowed (like checking those emails) is generally considered hours worked and therefore entitles to the employee to compensation.
“You don’t have to go back too many years when the only phones we had were connected by a cord to the wall, and if it rang in the evening, you just didn’t answer,” says Mark. “Same thing with Caller ID, when that technology came into play. Now, phones are everywhere and it’s possible to get in touch with employees by email, texting, or calling any time.” He advises employers who expect employees to perform work before or after regular work hours to pay them for their time.
Bottom line, employees should receive compensation for time they spend working. It’s important to create policies that outline when you allow overtime, and the compensation for overtime. Explain these policies during on-boarding with new hires. In the long run, paying a few hours of overtime is far less expensive than a lawsuit for back pay.
“Journey strives to be the best at providing a payroll solution for your business. While doing so, our team will guide our clients to make sure they’re staying inside the law by providing current information and local resources. With all of that said, in addition to all of the solutions we offer to small and medium-sized businesses, Journey encourages employers to focus on company culture. If an employer is not paying their employees fairly, your company culture is taking a hit before it even has a chance. I, and we, just want everyone to be happy!”
President & CEO
Journey Employer Solutions