It’s 2019 already!? This year my New Year’s Resolution is to spread the word about interesting wage payment issues! To help me accomplish my resolution, our Woods Rogers Labor and Employment team agreed to adopt my Resolution as the Team’s Resolution. We will issue an e-alert each month tailored specifically to a Fair Labor Standards Act (FLSA) issue.
The best part is our readers can also make a New Year’s Resolution to get better acquainted with the FLSA.
January’s topic is de minimis time.
Understanding when minutes here and there must be paid can be quite challenging. It is common to get frustrated when employees work a few minutes off-the-clock even though they have been told not to. Any “off the clock” work is a problem—but perhaps there is some relief. The fact is—we are in this together and a few random minutes may be generally safe!
The General Rule
The FLSA requires employers to pay non-exempt employees their regular rate of pay for “all hours worked” and 1.5 times their regular rate for “all hours worked over 40 in a workweek.” Employers must track employees’ hours worked to meet this overtime requirement. Most employers have employees clock-in/out or fill out a daily time sheet.
BUT what if the employee checks her email later that night?
What if she receives a text from her supervisor during her lunch break?
What if she fills out an HR form at home?
Does she have to be paid for that time?
Technically, yes. However, the employer may not have to pay it if the employee brings an action. The de minimis rule prevents employees from recovering compensation for work when the work was only a few seconds or minutes more than scheduled working hours (also referred to as “split-second absurdities”).
But how much time is too much time?
There is no bright-line rule or defined amount of time like 3 minutes or 7 minutes. Instead, courts will conduct a factual, case-by-case analysis using the following factors:
- the practical administrative difficulty of recording the additional time
- the aggregate amount of compensable time
- the regularity of the additional work
Let’s look at two hypotheticals…
1.) Text: “Can you pick up a shift?”
The store manager, John, sends a group text to all employees (who are non-exempt and clocked out) to see if someone can cover a shift the next day. An employee, Dana reads the text, looks at her calendar, calls to let her dog walker know she will need him to attend to Fido tomorrow, and then responds to John, “I’ll take the shift.”
Dana spent 6 minutes doing these tasks. Would the employer have to pay for this time?
Likely, no. The time Dana spent looking at her calendar and calling the dog walker should not be compensable work time. The time it took her to read the message and respond, likely 30 seconds or so, would technically be compensable but is likely de minimis. However, if this occurred frequently, Dana would have a better argument that she should be paid.
If it were to reoccur, the “aggregate” amount of time doing these tasks would be more than a few seconds, and the regularity of the tasks may be considered foreseeable by management.
2.) Post-Duty Equipment Care
Tim, a technician, repairs streetlights for the City. When he gets home, he has to clean his tools to remove chemicals and grease so he can repair more streetlights the next day. This is a common industry practice. Daily cleaning is required to keep these specific, rare tools in good condition.
Cleaning takes about 4-5 minutes. Would the employer have to pay for this time?
Likely, yes. The task is regular (daily) and amounts to about 20-25 minutes of extra time per week. It is also fairly simple for Tim’s employer to pay him for this time by letting Tim report his weekly tool cleaning time. The city could also require Tim to clean the tools before he clocks out.
Keep in mind that even simple tasks may add to the compensable time that you owe your employees.
Remember, this is a simple overview of the standard.
Every situation is fact-specific and may need further consideration. State and local laws may also apply. Do not hesitate to reach out to our Team if you have any questions.
2019, here we come!
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