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.