McGillivary Steele Elkin LLP successfully represents workers who are not paid when they work overtime. Unpaid overtime violations occur in every industry across the nation and in both the public and private sectors. The most common overtime pay violations include unpaid pre-shift and post-shift work, unpaid meal break work, not being paid for on call time or work performed when off-the-clock, and not being properly compensated for sleep, waiting time, training time and travel time.
Not Being Paid for Overtime or Off-The-Clock Work
You cannot “volunteer” to work for your employer for free. As such, workers are entitled to be paid for all work that they are “suffered or permitted” to perform, meaning all work that their employer knows about or has reason to know about. Employers must pay workers for all work about which it is aware even if the time was not “pre-approved” or the work was not requested. This includes work performed outside their regular shift hours, including pre-shift, post-shift, or during an otherwise unpaid meal period. For example, pre-shift tasks to prepare for a shift, including gathering equipment, putting equipment on, speaking to a supervisor about work, or reviewing materials for your first assignment of the day, must be paid.
Similarly, employers must pay their employees for all work performed during a “continuous workday.” This means that once an employee begins performing their first compensable task of the day, they are “on the clock” until they finish performing their last compensable task of the day. All of the time between the beginning and end of the continuous workday is compensable as hours of work, even if not every second of that day is spent performing a work task.
For most employees, any work performed in excess of 40 hours in a workweek must be paid at a time and one-half rate. For federal employees, not only must all hours in excess of 40 in a workweek be paid at this rate, but all hours in a workday excess of an employee’s regularly scheduled 8+ hour shift must be paid as overtime as well.
The most common overtime pay violations include failing to pay for work performed pre- and post-shift or while off-the-clock, failing to pay for work performed during unpaid meal breaks, failing to pay for on call time, and failing to properly compensate workers for sleep, waiting time, training time, or travel time. This happens to workers across industries, including office workers, call center employees, police officers and fire fighters, EMTs, corrections officers, loan officers, nurses, and auto mechanics.
Employers who do not pay workers on time for all of their work time can be required to not only pay the workers’ unpaid overtime wages, but also liquidated, or double, damages.
Further information about different types of overtime and off-the-clock work issues and common overtime pay violations can be found below. For more information, email us at info@mselaborlaw.com to set up a free consultation with one of our experienced labor and employment attorneys.
Pre-Shift and Post-Shift Work
All work time must be counted in computing an employee’s total hours of work, including work not requested but suffered or permitted by an employer. This includes work before and after an employee’s scheduled shift, even if that work is off-the-clock. Examples of pre- and post-shift work which must be paid include, but are not limited to, work that is a necessary part of the job such as collecting and donning (or putting on) equipment or attending mandatory meetings, work that an employer orders to be completed pre or post-shift, and work that an employer knows is being completed, or would know about if it made a reasonable inquiry, such as employees logging on to their employer’s computer system to begin working pre-shift.
Examples of pre-shift and post-shift duties that courts have found to be compensable under the FLSA include, but are not limited to:
- showering and cleaning up after work at a battery plant;
- picking up batteries for radios and other equipment upon entering a prison;
- donning protective gear in meatpacking plants;
- checking in and out of firearms by armed security guards;
- conducting mandatory pre-shift safety inspections or equipment checks;
- caring for law enforcement dogs while at home, outside scheduled shift hours; and
- booting up a call center computer on the employer’s premises pre-shift.
If these pre- and post-shift duties mean that an employee works in excess of 40 hours in a workweek, they are entitled to overtime pay for that excess time. Employers cannot escape the payment of overtime for compensable hours worked by virtue of an unenforced announcement that no overtime is authorized without prior supervisory approval. Even if an employer has such a rule, it cannot accept the fruits of employees’ labor about which it is aware without paying the workers for it.
Records of suffered or permitted work time are often incomplete or nonexistent; however, this does not prevent the recovery of damages. Under the FLSA, employers bear the burden of keeping accurate employment records including records of work hours. If the employer fails to maintain these records, courts will rely on employees’ reasonable estimates of their work time.
Meal Periods and Other Break Time
Although the FLSA does not require paid meal periods, employers must pay for any work performed during an otherwise unpaid meal period. More specifically, unless the employee is “completely relieved from duty for the purposes of eating regular meals,” the Department of Labor’s regulations require that meal periods be counted as compensable work time. As a result, employers who impose work-related restrictions or requirements on employees during their meal periods, such as answering phones, responding to work related requests, or performing work tasks at the direction of their supervisors, must pay employees for the time spent performing meal period work. Similarly, some courts have held that where employees are required to remain on the employer’s premises in a place which is not a dining or locker room during a designated meal period, these restrictions were enough to render the entire meal period compensable.
Similarly, breaks of 20 minutes are less are considered “rest breaks” and must be paid, regardless of whether work is being performed.
Travel Time
Generally, travel time conducted for work during work hours is compensable whereas ordinary home-to-work travel (i.e., commute time) is not. However, certain travel is compensable even if it occurs outside of an employee’s regular shift hours, either as a part of the continuous workday or due to unique travel time regulations.
Travel Between Work Locations: When an employee is traveling from one work location to another and there is no time for personal pursuits during such travel, the travel time must be counted as compensable work time. One circumstance where this might occur is when an employee’s regular shift ends, and they must travel to another work location to work a subsequent overtime shift. Many courts have agreed that such travel time is compensable, as such travel is a part of the employee’s continuous workday.
Emergency Travel from Home to Work: Depending on the circumstances, emergency travel from home to work may be compensable. For example, if a worker is called in the middle of the night and ordered to go to an emergency work site other than their typical work location, the time is compensable.
Federal Employee Travel: Federal employees can be compensated for travel time in particular circumstances unique to the federal sector. Time spent driving a government vehicle outside of the employee’s regular commute is considered compensable work time. In addition, travel on weekends is compensable even if no work is performed so long as the work hours cut across the employee’s administrative workday. This means that if the employee’s administrative workday is 7:00 a.m. to 5:00 p.m. and the employee travels on a weekend during those hours, the travel time is compensable.
Waiting and On-Call Time
Time spent waiting while on duty is compensable, particularly if it is on the employer’s premises, is unpredictable, and/or is of relatively short duration. For example, a restaurant worker who is required to report to work at a certain time, though he does not have to bus or serve tables until a certain number of customers are present, is likely entitled to compensation for his waiting time.
In addition, in certain occupations employees are hired to be “engaged to wait” for something to occur. For example, fire fighters and emergency workers are hired, in part, to be available to respond immediately to emergencies. Some mechanics are hired to be available to immediately repair expensive machinery. Some truck drivers are hired to wait until assignments come in so that they can leave immediately. All of these employees have been found by courts to be “engaged to wait” and, therefore, their waiting time has been found to be compensable.
Further, some employees are required to be “on call,” meaning that they must remain available at home or on the employer’s premises to respond to calls. Of course, the time spent responding to any calls or performing work is compensable. With regard to any on-call waiting time, however, there is no bright line rule as to whether or not it is compensable. In determining whether on-call time is compensable, courts review factors including:
- the average number of calls the employee responds to during the on-call period;
- the required response time (in other words, the amount of time in which the employee has to be at the work site after being called in);
- whether an employee is subject to discipline for missing or being late to a callback;
- the extent to which an employee is able to engage in other activities while on call; and
- the nature of the employee’s occupation (in some jobs, it is the nature of the job to be paid to be available to respond immediately to a situation).
Based on these criteria, fire fighters and emergency medical personnel have been found to be entitled to overtime pay for the entire on-call period even if it was spent at home.
On-Duty Sleep Time
As a general rule, employers must count on-duty sleep periods as compensable work time. On-duty sleep periods are occasions in which an employee is required to sleep on the employer’s premises and may have his or her sleep interrupted by some type of incident to which the employee must respond. This occurs most frequently in first response fields, such as fire fighting and emergency medical response.
Employers can avoid paying for on-duty sleep periods only if the employer has an express or implied agreement to exclude such periods from hours of work, the employer has furnished adequate sleeping facilities, and the employee’s workday is 24 hours or longer. For fire fighters specifically, the workday must be longer than 24 hours for on-duty sleep time to be compensable. Under no circumstances may an employer avoid paying for on-duty sleep time if the employee has not had the opportunity to receive 5 or more hours of sleep.
Notably, an employer cannot exclude more than 8 hours of on-duty sleep time per 24-hour shift when computing employees’ overtime pay.
