Are Your Non-Exempt Employees Properly Compensated for All of Their Work Time?

21 October 2013 Labor & Employment Law Perspectives Blog

Employers are continuing to be bombarded by collective or class action lawsuits filed by their non-exempt employees for alleged violation of the Fair Labor Standards Act (“FLSA”), and similar state wage and hour laws. Many of these disputes pertain to whether the employees should have been paid for alleged forms of “off the clock” work, like when an employer mandates donning and doffing of uniforms and other gear, conferences with employees during shift turnover before they are on or after they have gone off the clock, and other activities before or after the start of their work duties.

Why are certain employers at risk of being subject to such costly litigation and substantial liability? Among the main reasons: employer misconceptions about what constitutes compensable work; employer scheduling practices that do not include required preliminary and postliminary (before or after work duties begin) activities within the scheduled work day; electronic or other time-keeping practices that do not appropriately account for and ensure adequate compensation for such activities through permissible rounding or other means; and the absence of uniform decisions concerning and definitive guidance from the courts about what constitutes compensable preliminary and postliminary work activity.

Evolving case law and FLSA regulations, opinion letters and other guidance issued by the Wage and Hour Division of the United States Department of Labor (“DOL”) show that preliminary and postliminary activities required by employers of and performed by their non-exempt employees may be deemed by a court or the DOL to be “integral and indispensable” to their principal work activities. As such, that time may be deemed compensable time if it is more than de minimus.

An employer should decide whether requiring that non-exempt employees perform preliminary and postliminary activities is necessary to achieve service, productivity, or other business and human resource related objectives. It should consider whether any requirement that non-exempt employees perform preliminary or postliminary activities without compensation should be eliminated, or paid, especially if the time expended to perform these is more than de minimus.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services