BOSTON // HARTFORD // NEW YORK // NEWARK // STAMFORD // PHILADELPHIA // WILMINGTON
Recording, Defining and
Counting Hours Worked
CBIA Seminar
♦ Whether time is compensable is fundamental
to:
– Minimum wage compliance
– Overtime calculation
– Compliance with recordkeeping obligations
– The company’s bottom line
♦ The rules are complicated
– Federal and state rules
may differ
♦ Technology is blurring the
line between when
workers are on-duty and
off-duty
♦ The stakes are high
♦ Enforcement activities by federal and state
agencies is at an all time high and penalties
are significant
– Civil money penalty
CT - $300 per violation
Federal - up to $1,100 per violation for Repeat
or willful minimum wage or overtime pay
violations
– Referral to Attorney General for Prosecution
♦ The stakes are high
– October 2012 – KFC paid $3.55 million to settle
off-the-clock claims involving workers alleging they
performed store-closing functions for which they
were not paid
♦ The stakes are high
– July 2012 – A Xerox subsidiary paid $4.5 million to
settle off-the-clock claims involving the few
minutes call center workers spent each day
logging on to their computers
– December 2009 – Walmart paid $40 Million to
settle off-the-clock wage claims
New DOL App Helps Workers Keep Track
“This is a timesheet to
record the hours that you
work and calculate the
amount you may be owed
by your employer….”
Hours Worked – Key Principles
♦ Hours worked includes all work that the employer
“suffers or permits”
– Even if the work is not requested or authorized
– Includes work performed away from the usual
workplace
Factors to consider: Was the work
1. Required by the employer,
2. Pursued necessarily and primarily for the
employer's benefit, and
3. An integral and indispensable part of the
employee's work8
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Hours Worked – Key Principles
♦ Continuous Work Day Rule:
– Employers must pay for all working time within
the workday, from the employee's first principal
activity to the employee's last principal activity
Principle Activity
♦ Any activity that is an integral and indispensable part
of an employee's work
– Putting on and taking off protective gear
– Walking from the area where an employee performs
one principal activity (putting on protection gear) to
another area where employee performs another
principal activity
– Morning staff meeting
– Checking e-mails at home (?)
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Work Time Excludes
“Non-work” time!
♦ Non-work time includes
– Holidays, sick days, vacations, other days off
whether paid or unpaid
– Only certain breaks (discussed below)
COMMON PROBLEMS IN
DETERMINING HOURS WORKED
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Preliminary and Postliminary Activities
♦ Activities not integral and
indispensable
– Commuting to work
– Changing clothes (under
certain circumstances)
– Storing personal belongings
in a locker provided for the
benefit of workers
– Punching in/out, including
waiting in line to do so
Rest and Meal Periods
♦ Meal Periods
– Need not be compensable
Sufficient time to eat a
regular meal – generally 30
minutes
The employee must be
completely relieved of all
work duties (active or
passive)
• without interruptions
The employer need not
permit employees to leave
the premises
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Rest and Meal Periods
♦ Meal Periods
– Under Connecticut law –
Employers must grant a 30
minute meal period to
employees working at least
7.5 consecutive hours
Exception: not required if
employees receive thirty or more
total minutes of paid rest or meal
periods
– Law allows employers to
exclude “meal periods” from
hours worked. Same as
federal.
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Travel Time
♦ Not Hours Worked
– Generally, normal home-
to-work commuting,
except if employee
begins working at home
prior to commuting
– Overnight travel, if
outside the employee’s
normal work hours (on a
work or non-work day)
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Travel Time
♦ Hours Worked
– Travel between job sites during the work day
– Travel in excess of normal commuting time
but can exclude the normal commuting time or time to
travel to/from the airport or train station
– Overnight travel, if during the employee’s normal work
hours (on a work or non-work day)
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Travel Time
♦ Hours Worked
– Travel to/from home in company vehicle if
Mandated by employer;
the vehicle is a type not normally used for
commuting (e.g., dump truck);
The employee incurs a cost for driving or parking
the vehicle at his/her home; or
The travel “inures to the benefit of the employer”
• e.g., a repair business advertising that its
technicians can arrive within half an hour.
Training Time
♦ Time spent in meetings, lectures and training
is generally deemed hours worked unless all
four of the following are met:
– Attendance is outside regular working hours
– Attendance is voluntary
– The course, lecture, or meeting is not job
related
– The employee does not perform any
productive work during attendance
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Engaged to Wait / Waiting to be Engaged
♦ Engaged to wait (work hours) vs.
waiting to be engaged (not work
hours)
♦ Time is deemed hours worked
when:
– Employees must stay on or
remain near the employer’s
premises, or
– They are unable to use the
time effectively for their own
purposes
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Engaged to Wait / Waiting to be Engaged
♦ Time is not counted as hours worked when:
– Employees are completely relieved from duty, and
– The time is long enough to enable them to use it
effectively for their own purposes
♦ Includes when employees are “subject to call”:
– Employees may be required to carry a pager
– Employees may be required to leave word at
home or with the employer where they can be
reached
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Engaged to Wait / Waiting to be Engaged
♦ When waiting to be engaged (“subject to call”),
when does work time begin?
– Cashman v. Town of Tolland – Conn. Supreme
Court (2005)
Tracking Telecommuters’ Time
♦ Challenges are different
– Lack of supervision
– Work and home are the
same place
♦ Principles are the same
– Clearly define start and
end of workday
– Use technology to permit
access to work-related
sites/tools only when
clocked-in
Off-The-Clock Smart Phone Use
♦ Examples of recent class actions
– Agui v. T-Mobile Inc., No.
2009-cv-092955 at 8
(E.D.N.Y. July 10, 2009) Non-
exempt sales representatives
claimed they were required to
answer messages on their
smart phones after hours but
were not paid
The case settled for an
undisclosed amount.
Off-The-Clock Smart Phone Use
♦ Examples of recent class actions
– Rulli v. CB Richard Ellis, Inc.,
2009cv00280 (E.D. Wis. Mar.
13, 2009) A collective action
claiming the company owed
non-exempt employees wages
for off-the-clock time spent on
company-issued BlackBerries
and smart phones.
The case settled for an
undisclosed amount.
Off-The-Clock Smart Phone Use
♦ Examples of recent class actions
– Allen v. City of Chicago, No.
1:10-CV-03183 (N.D. Il. May
24, 2010) A collective action by
police officers alleging they
were required to carry and use
a BlackBerry device. Plaintiffs
seek overtime for time spent
reviewing and responding to
messages and calls during off-
duty hours
The case is still pending.
Off-The-Clock Smart Phone Use
♦ No specific official guidance
♦ General concepts apply– “Suffer or permit”
– Continuous work rule
– Engaged to wait v. waiting to be engaged
– “De minimis” interrruptions
Best Practices
♦ Prohibit off-the-clock work
– Control ambitious employees
♦ Require overtime be pre-approved
♦ Policies Restricting Work (See Employer Alert)
♦ Telecommuting / Smart Phones should be
separately and specifically addressed
– Consider limiting telecommuting/smart phones
to exempt employees
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Policy Enforcement is Key
♦ U.S. DOL Regulation: “The mere promulgation
of a rule against [off-the-clock] work is not
enough. Management has the power to
enforce the rule and must make every effort to
do so.” 29 C.F.R. § 785.13
♦ But see White v. Baptist Memorial Health Care
Systems, No. 11-5717 (6th Cir. Nov. 6, 2012)
Employer “not liable for non-payment if
employee fails to follow established process.”
Certification of Time Records
♦ Require non-exempt
employees to review and
certify time records.
♦ Require employee to identify
any inaccuracies to permit
immediate correction.
♦ Daily review is ideal but
something less frequent can
be used.
♦ Certification should cover
off-the-clock work and meal
periods.
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No Automatic Deductions
♦ Avoid daily automatic deductions for meal
breaks
– You many need to override software systems
that have this feature built in
– At a minimum, educate employ on the process
for claiming credit for missed meal breaks and
pay them when they do
– There can be no subtle pressure applied to
avoid payment
Audit Time Records for Compliance
♦ Adopt an audit protocol to ensure
employees and managers are
following policies and
procedures.
♦ Audit protocol should be
designed to be discoverable in
the event of future litigation as
part of company’s good faith
defense.
♦ Promptly investigate and
remediate any discovered
violations.
♦ Implement appropriate discipline
for managers and employees in
the event of violations.
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Questions?
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