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Total Articles: 52

Refinery Workers’ Pre-Shift Wait Time Not Compensable, Fifth Circuit Holds

Concluding that the unstructured time spent by the plaintiffs between arriving at the oil refinery and the beginning of their shifts was not “integral and indispensable” to their duties erecting scaffolds at the refinery, the Fifth Circuit held that this time was not compensable under the FLSA. Bridges v. Empire Scaffold, LLC, 2017 U.S. App. LEXIS 22520 (5th Cir. Nov. 9, 2017).

eLABORate: Fifth Circuit Says Employer Not Liable for Pre-Shift Wait Time Under FLSA

In a decision rendered on November 9, 2017, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s ruling that an employer was not liable under the Fair Labor Standards Act (“FLSA”) for failing to compensate its employees for pre-shift wait time.

"I'm Not Paying For That": Update On Using Timekeeping Policies To Defend Off-The-Clock Claims

We have recently focused upon the growing number of federal court decisions under the federal Fair Labor Standards Act that have given legal weight to carefully-crafted, well-maintained employer policies requiring employees to report all of their worktime. Several such courts have relied upon the principle that workers can recover FLSA-required wages for alleged off-the-clock work only if the employer had actual or constructive knowledge of the work.

Paying Employees When Weather Closes the Doors: A Refresher on Employer Obligations

As Hurricane Harvey continues to wreak havoc on Houston, Texas, and surrounding areas, undoubtedly, many businesses have been damaged or destroyed, while others have closed temporarily for safety and security reasons. These businesses may remain closed, or operate with limited hours, for days, weeks, or possibly months. When such closures occur as a result of nature’s forces, what are an employer’s obligations to continue paying its employees?

City of Chicago Not Liable for Police Officers’ After-Hours Smartphone Use, Seventh Circuit Affirms

The City of Chicago lacked either actual or constructive knowledge that members of the Chicago Police Department were performing after-hours work on their smartphones, the Seventh Circuit Court of Appeals has ruled, affirming a trial court’s earlier ruling that the City was not liable for this work under the Fair Labor Standards Act. Allen v. City of Chicago, 2017 U.S. App. LEXIS 14230 (7th Cir. Aug. 3, 2017). The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.

Do I have to pay employees to run a 5K? [Wage & Hour FAQ]

Q. Our company would like to enter a team in a local 5K charity race to do some good for the community and provide some positive PR for the company. Do we have to pay employees for time spent in this activity?

What Activities Do You "Pay For"?

ABC Corporation sometimes conducts in-house, during-the-workday, performance-improvement training for its employees. Its Policy Manual includes a sentence saying, "The Company pays for the time employees spend in work-related training."

Inclement Weather FAQs: Who Gets Pay for a Snow Day?

As winter progresses, employers may find themselves monitoring the weather and wondering how to handle numerous operational headaches. Should a worksite close? If so: when, and for how long? Who can work from home, and who must be paid for what time? The kids may be hoping for a snow day, but employers know that winter weather creates a host of complications, including dangerous commutes and school closings, as well as delivery and service delays.

Establishing "Workweeks" For Exempt Employees

We have written previously about how important the "workweek" concept is in complying with the federal Fair Labor Standards Act's minimum-wage and overtime requirements.

Unreported Working Lunches May Still Be Work Time

Back in December, we wrote about a case involving the Chicago Police Department, in which officers alleged that they were owed additional overtime for time spent responding to calls and messages on their Blackberry devices, but which they failed to report in accordance with Police Department procedures. The court ruled for the City, holding that while the officers may have worked hours for which they weren't paid, the City was not liable because it did not have actual or constructive knowledge of the uncompensated work. It was a clear win for the City and for employers in general. But before anyone gets carried away, they should read a subsequent decision from another judge in the Northern District of Illinois that illustrates the limits of the idea that employers are not on the hook for work they don't know about.

"Constructive Knowledge" Off-The-Clock Claim Rejected

Another federal appellate court, this time the Fifth Circuit U.S. Court of Appeals (with jurisdiction over Mississippi, Louisiana, and Texas) has rejected an employee's claim to have been entitled to federal Fair Labor Standards Act overtime compensation for unreported hours worked over 40 in a workweek. Readers will recall our 2012 post discussing a decision from the Tenth Circuit saying that, under the right circumstances, an employee's failure to report all hours worked can be fatal to such an "off the clock" claim.

City Not Liable For Chicago Police Officers' Blackberry Work Time

If a tree falls in the forest but there is no one around to hear, does it make a sound? If a non-exempt worker answers an e-mail message after hours on her Blackberry but fails to put in for overtime, has she performed compensable work? While I'm not aware of any firm legal authority on the first question, a recent ruling by the U.S. District Court for the Northern District of Illinois offers a detailed and instructive analysis of the second.

Applying Integrity Staffing., Federal District Court Holds that Time Spent at Pre-Shift Safety Meetings Is Not Compensable Under the FLSA

Joining similar decisions applying the Supreme Court’s interpretation of the Portal-to-Portal Act in Integrity Staffing Solutions, Inc. v. Busk, Senior District Judge Terrence F. McVerry of the Western District of Pennsylvania recently held that time spent attending allegedly mandatory pre-shift safety meetings was not compensable under the FLSA because those safety meetings were neither “principal activities” nor “integral and indispensable” to the mining employees’ principal activities. Bonds v. GMS Mine Repair & Maint., Inc., 2015 U.S. Dist. LEXIS 127769 (W.D. Pa. Sept. 23, 2015).

The Trend Toward Payroll Cards

Last month, Georgia became the latest state to pass legislation governing the payment of wages via “payroll cards.” Gov. Nathan Deal signed the new law on May 5, 2015. Prior to the passing of this bill, the payment of wages via payroll cards in Georgia was neither explicitly lawful nor unlawful. Any open questions about that issue have now been put to rest by the new legislation.

Whose Time Is It Anyway? Key Decisions Clarify the Meaning of Compensable Time

Late last year, the U.S. Supreme Court issued an opinion in Integrity Staffing Solutions v. Busk, providing some clarity regarding whether employees must be compensated for certain "mandatory" activities engaged in before they start and after they finish their workday. The plaintiffs, contract workers assigned to an Amazon.com, Inc. fulfillment facility, accused their employer, Integrity Staffing Solutions, of violating the Fair Labor Standards Act (FLSA) by failing to compensate them for the time they were required to spend each day going through a theft-prevention security checkpoint before leaving the warehouse. The Ninth Circuit Court of Appeals, when presented with the issue, held that the security screenings were compensable employment activities, reasoning that "the screenings were 'necessary' to the employees' primary work as warehouse employees and done for Integrity Staffing's benefit."

To pay or not to pay? Court holds employer is not obligated to pay for attendance at mandatory treatment program

Although most employers are aware that an employee’s time spent working is generally compensable, the question of what actually constitutes compensable “working time” under the Fair Labor Standards Act (FLSA) is an area fraught with uncertainty and the subject of substantial litigation. Indeed, in December 2014, in the case of Integrity Staffing Solutions, Inc. v. Busk, the U.S. Supreme Court concluded that employees’ time spent waiting to undergo and undergoing security screenings was not compensable working time. If the amount of litigation surrounding this issue is any indication, determining whether employee activity connected to employment is compensable is an area where mistakes are easily and commonly made by employers.

Employee's Failure to Report Off the Clock Work Not a Total Defense Says 11th Circuit

Last summer, we highlighted an example of how good recordkeeping practices can result in a favorable decision. In the Kaiser Foundation Health Plan case, the employer successfully defended an “unauthorized overtime” claim where an employee worked off the clock against Kaiser’s policies and without its knowledge. A recent Eleventh Circuit decision demonstrates the limits of relying solely on policies as a defense in these types of cases.

Workers Not Entitled to Pay for Security Check Time

Employers should be relieved to know that they are not required to pay employees for security check time. In a unanimous opinion issued Tuesday, the U.S. Supreme Court held that workers are not entitled to be paid for time spent waiting for and undergoing post-shift anti-theft screenings under the Fair Labor Standards Act (FLSA) as amended by the Portal to Portal Act.

Supreme Court Narrows Test for Compensable Time Under the FLSA

Executive Summary: On December 9, 2014, the United States Supreme Court issued a unanimous decision favorable to employers significantly limiting the types of preliminary and postliminary activities that are compensable under the Fair Labor Standards Act (FLSA). In Integrity Staffing Solutions, Inc. v. Busk, the Court held that the time spent by warehouse workers waiting to undergo and undergoing security screenings before leaving for the day is not compensable.

eLABORate: Supreme Court Holds Security Screening Time Non-Compensable Under the FLSA

On December 9, 2014, in a 9-0 decision, the United States Supreme Court held that employees’ time spent waiting to undergo and undergoing security screenings is not compensable time under the Fair Labor Standards Act (“FLSA”). Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, 2014 WL 6885951 (2014).

No Pay For Security Checks: Supreme Court

Today, the U.S. Supreme Court unanimously held that employees are not entitled to compensation for time spent waiting for and participating in mandatory security screenings at the end of their shifts. The decision reached by the Supreme Court is a victory for the increasing number of employers nationwide who screen employees to prevent theft. In addition, the Court provided much-needed guidance in an area of wage and hour law that has historically been the subject of litigation: when does the compensable workday begin and end? Integrity Staffing v. Busk.

Supreme Court Rules Security Screenings Are Not "Integral and Indispensable" to Principal Activities and Thus Not Compensable

On Tuesday, December 9, 2014, the Supreme Court of the United States ruled that the time workers spend waiting to undergo and undergoing security screenings is not compensable under the Fair Labor Standards Act (FLSA). According to Justice Thomas, writing for a unanimous Court, the security screenings at issue were not the principal activities the employees were employed to perform and were not “integral and indispensable” to those activities. Thus, the screenings were “noncompensable postliminary activities.” In arriving at this conclusion, the Court provided some much-needed clarification on the “integral and indispensable” test, holding “that an activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Integrity Staffing Solutions, Inc. v. Busk, Supreme Court of the United States, No. 13–433 (December 9, 2014).

Pre-Departure Security Screening Not FLSA Worktime

The U.S. Supreme Court ruled today that the time non-exempt employees spent in connection with an end-of-workday security screening before leaving the premises did not count as worktime under the federal Fair Labor Standards Act. Instead, it said, the time so spent was non-compensable "postliminary" activity under the federal Portal-to-Portal Act.

Unanimous Supreme Court Rules Employer Need Not Pay for Worker Security Screenings: Integrity Staffing Solutions, Inc. v. Busk

In October, we profiled Integrity Staffing Solutions, Inc. v. Busk, a case asking whether time spent in security screenings is compensable under the Fair Labor Standards Act (FLSA). Warehouse workers sued Integrity Staffing under the FLSA for uncompensated time they were required to spend in lengthy security screenings (lasting up to 25 minutes) at the end of their shifts during their assignments to work in Amazon warehouses. At the time, we suggested that it would be “hard to envision a result different” from last term’s Sandifer v. U.S. Steel case. This prediction came true, but from a unanimous Supreme Court, rather than a sharply divided one. The Court held that the employees at Integrity Staffing Solutions facilities in Nevada could not claim compensation for the time spent going through security screenings aimed at protecting against theft because these activities were not integral and indispensable to their principal duties.

White House Lays Out Flexible Workplace Blueprint for Private Sector

With the German victory in the 2014 World Cup now in the books and baseball finishing up its All Star break (Go Tigers—Cabrera with a 2-run HR, Scherzer with a W!), I wanted to turn my attention this week to the latest push by the White House to encourage change in the private sector workplace, specifically alternative or flexible work schedules.

When is a Commute Not a Commute? In a Company Car (Well, Maybe)!

In my last post, I outlined the “normal” commuting case after Congress passed the Employee Commuting Flexibility Act (ECFA). The ECFA clarified the applicability of the Portal-to-Portal Act to the payment of wages to employees who use employer-provided vehicles. Clarification was necessary because of two conflicting opinion letters on the topic issued by the DOL in 1994 and 1995, respectively. As I mentioned earlier this week, the ECFA made commuting in a company car non-compensable only if the use of the employer’s vehicle was (1) “for travel that is within the normal commuting area for the employer's business or establishment;” and (2) “subject to an agreement on the part of the employer and the employee or representative of such employee.” 29 U.S.C. § 254(a).

Heigh-Ho, Heigh-Ho, It's Off to a Non-Compensable Commute We Go

If only “Heigh-Ho” from Disney’s Snow White had been written sometime in 1938, rather than 1937, maybe my FLSA-influenced version would have had a chance.

Three Square Meals er...Breaks - Why You Should Never Round Breaks [Wage & Hour FAQ]

In my last two posts (here and here), I’ve discussed rounding at the beginning and end of a shift, but what about rounding for meal breaks?

Employee Not Entitled to Compensation for Time Spent Commuting to and from Job Sites and Home in Company Vehicle While Carrying Company Tools

In a recent decision, the Connecticut Supreme Court found that a plumbing foreman was not entitled to compensation for the time he spent commuting to and from job sites and his home at the beginning and end of his workday, even though he used a company vehicle and carried his employer’s tools to and from the sites. In its ruling, the court rejected the Connecticut Department of Labor’s four-part test for determining the compensability of travel time and instead applied the federal test, which is more favorable to employers.o

Is an End-of-Shift Security Clearance Compensable? The Supreme Court Will Decide Next Term

On Monday, March 3, 2014, the Supreme Court of the United States agreed to decide whether a company was required to pay overtime compensation to its workers for the time they spent passing through a security clearance at the end of each shift. In a case on appeal from the Ninth Circuit Court of Appeals, the workers claimed that their employer violated the federal Fair Labor Standards Act (FLSA) and state labor laws by failing to pay them for the time they spent in security screenings that the company used to prevent theft.

Do I Have To Pay An Exempt Employee Who Answers E-Mail Or Phone Calls While On FMLA Leave? [Wage & Hour FAQ]

Q. A salaried, exempt employee who recently returned from a week of unpaid FMLA leave claims that he is entitled to be paid his full salary for entire week because he responded to a number of work-related e-mails and telephone calls while he was out. Do we have to pay?

Can A Paid Break Become Unpaid?

Acme Corporation's longstanding policy is to give non-exempt employees two 10-minute rest breaks each workday. It treats these breaks as paid worktime. Management recently realized that, over the years, most of the employees have gradually come to be spending 15 to 20 minutes or even a little longer on each break. Acme sent out a memo reminding everyone that the breaks are limited to 10 minutes, but it had no effect. Could Acme start considering the over-10-minute extensions to be unpaid time?

What Does The FLSA Say About Nursing Mothers? [Wage & Hour FAQ]

Regular readers may have noticed a decline in the frequency of our updates around the end of the year. That's because, in addition to the usual holiday and year-end craziness, my wife and I welcomed a new baby on the day after Christmas. As I get back into the swing of work and blogging, I thought this might be a perfect time to review the federal requirements regarding break time for nursing mothers.

Quick Quiz Answer: "On Call" Time Under The FLSA

The best answer to last week's Quick Quiz is, "No", it is not likely that Alan's time between calls would be found to be worktime under the federal Fair Labor Standards Act.

"Flexible Work" Trend Still Necessitates Wage-Hour Compliance

A recent Time magazine item by Dan Schawbel of Millennial Branding discusses what he sees as a growing trend to abandon the traditional on-premises, 9-to-5 workday in favor of permitting employees to "work odd hours, telecommute and otherwise tweak the usual 9 to 5 grind." Schawbel says that Generation Y employees (those born between 1982 and 1993) are spearheading this because they prioritize workplace flexibility so highly. He warns that employers who fail to offer the option to telecommute, to work atypical hours, and to use technology to facilitate alternative work patterns run the risk of turning away a group of prospective workers projected to comprise 75% of the global workforce by 2025.

Seventh Circuit Holds Employer Not Liable Under FLSA for Employee’s Off-The-Clock Work

On December 14, 2011, the U.S. Court of Appeals for the Seventh Circuit held in Kellar v. Summit Seating Inc., ____ F.3d ____ (7th Cir. 2011), that a former employee who claimed she worked 15 to 45 minutes every day without pay before the start of her scheduled shift failed to make out a claim for back pay under the Fair Labor Standards Act (FLSA) and Indiana Wage Payment Statute. In reaching this decision, the court found that there was no evidence that her employer knew or had reason to know she was performing this work.

Daylight Saving Time Ends, Wage and Hour Problems Begin

On Sunday, November 6 at 2:00 a.m., daylight saving time will end and in most states clocks will be set back one hour. As it does every year, this change presents a challenge for employers whose non-exempt employees are working during that time.

Starting Computers and Reading E-Mail May Be Compensable Work

Last week, the U.S. Department of Labor announced a settlement with Hilton Reservations Worldwide, LLC, in which the company agreed to pay $715,507 in minimum wages and overtime pay to 2,645 current and former customer service employees in Texas, Florida, Illinois and Pennsylvania. The DOL determined after an audit that the company failed to pay workers for pre-shift activities such as booting up their computers, launching necessary programs, and reading work-related e-mails.

That Little Smart Phone Might Cause a Big Wage and Hour Headache

A smart phone is now as much a piece of your office life as a desk, laptop or employee handbook. Anyone can use their BlackBerry or iPhone to stay current on news and events, update social media status and check their email from any location with a signal.

Quick Quiz Answer: "Down Time" On A Business Trip

The answer to our September 23 Quick Quiz is, "None of it".

Quick Quiz: "Down Time" On A Business Trip

Ellen is a non-exempt employee who works in Bigtown for The Acme Corporation. She is assigned to hand-out brochures at TAC's booth at a tradeshow at a hotel in Salestown on Monday. She will stay in the same hotel where the show will be held. Her instructions are that she has to be at the booth location beginning at 7 a.m. on Monday, when she will help set up the booth.

Overstaying Rest Breaks: Paid Time, Or Not?

Acme Corporation's longstanding policy is to give non-exempt employees two 10-minute rest breaks each workday. It treats these breaks as paid worktime. Management recently realized that, over the years, most of the employees have gradually come to be spending 15 to 20 minutes or even a little longer on each break. Acme sent out a memo reminding everyone that the breaks are limited to 10 minutes, but it had no effect. Could Acme start considering the over-10-minute extensions to be unpaid time?

Do We Have to Pay Employees for Checking E-Mail Outside of Work? [Wage & Hour FAQ]

Our company provides remote access to e-mail for all employees, and some of our hourly employees carry iPhones and Blackberries with access to their work e-mail. Most non-exempt employees only work during regular business hours, but some will occasionally check and respond to e-mail after hours or on weekends. Do we need to pay employees for this time? If so, how do we track it?

Smart Phones' Big Wage and Hour Headache

A smart phone is now as much a piece of your office life as a desk, laptop or employee handbook. Anyone can use their BlackBerry or iPhone to stay current on news and events, update social media status and check their email from any location with a signal.

How Is Pay Figured When The Workweek Changes?

Our last post raised questions about how to calculate a non-exempt employee's pay under the federal Fair Labor Standards Act for the timeframe during which the employer adopts a different workweek.

How Many Hours Have You Worked This Week? Check Your Phone

The Department of Labor has entered the digital age with a splash, and has announced the launch of its first application for smartphones. That app is a timesheet to help employees independently track regular work hours, break time and any overtime hours for one or more employers. Individuals also can access a glossary, contact information and materials about wage laws through links to the Web pages of the DOL's Wage and Hour Division. According to the DOL’s news release, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment. The app is free and currently is compatible with the iPhone and iPod Touch. The DOL has said that it will explore updates that could enable similar versions for other smartphone platforms (Android and BlackBerry), and other pay features currently not provided for, such as tips, commissions, and bonuses.

Department of Labor Launches Smartphone Application for Tracking Hours

The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers.

USDOL Facilitates More Secret Time Records

We previously reported on DOL’s publication of a “Work Hours Calendar,” a timesheet for employees to use to keep a private record of each workday’s arrival, start, stop, and departure times, along with other information. In related comments, DOL told employees that “it is recommended that you keep your own records of all the hours you work and your pay.”

The Start Of Something Big?

A police officer has sued the City of Chicago (on behalf of himself and others) seeking pay for time spent dealing with work-related phone calls, voice-mails, e-mails, text messages, and work orders via BlackBerry® devices and similar "personal digital assistants." The officer contends that these activities entitle the group to an award of overtime compensation under the federal Fair Labor Standards Act (FLSA).

Is PDA Use Relevant As To Exempt Employees?

Our last post provoked an inquiry about what impact, if any, after-hours or off-day use of a BlackBerry® or another personal digital assistant might have with respect to employees whom an employer treats as exempt under one of the federal Fair Labor Standards Act's executive, administrative, or professional exemptions. The U.S. Labor Department's exemption regulations for these so-called "white collar" employees require that most such employees be paid on a "salary basis" in order to be exempt. This is where the problem might arise.

Chicago Officer Sues Over After-Hours PDA Use.

A police officer has sued the City of Chicago (on behalf of himself and others) seeking pay for time spent dealing with work-related phone calls, voice-mails, e-mails, text messages, and work orders via BlackBerry® devices and similar "personal digital assistants". The officer contends that these activities entitle the group to an award of overtime compensation under the federal Fair Labor Standards Act.

PDA After Hours.

Depending on who you ask, PDAs are either the greatest workplace innovation since desktop computers, or the bane of an employee's existence. In today's wireless environment, BlackBerrys, iPhones, and other handheld devices increasingly provide employees with round-the-clock access to email from remote locations. While wireless gadgets allow us to maximize productivity in competitive economic times, they may also give rise to overtime, minimum wage and other wage payment claims.
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