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  November 07, 2013
Clockchaser.jpgWhat Is Included In “Hours Worked” For Non-Exempt Employees?  

Hours Worked Are Calculated on a Seven-Day Workweek

Whether an hourly, non-exempt employee works over 40 hours a week is calculated on a seven-day period, regardless of how payroll is paid.  If the pay period is every two weeks or twice a month, this does not change the rule.  If an employee works 50 hours one seven-day period and 30 the next seven-day period during a two-week payroll span, he or she is still entitled to 10 hours of overtime for the first period.  It cannot be averaged out over two weeks or more, unless special rules are followed for a “flexible workweek” (which is a whole new can or worms, but sometimes worth the effort).  An employer cannot keep changing the seven-day period to carve out days with long hours either.  
Vacation and Other Time Off Not Included

Hours spent during the seven-day period for calculating time worked to determine if non-exempt employees are entitled to overtime do not include paid vacation, sick leave, jury duty, holidays, or other time not actually worked.

Time “Off the Clock”

Special problems: 
  1. Employees are not permitted to donate time to their employer, even if they do so voluntarily and even if the employer has a published policy that prohibits employees from working off-the-clock.  If an employee works overtime, they must be paid for it, period!  If they violated policy in working overtime, an employer’s only recourse is other disciplinary action.
  2. Break periods between 5 and 20 minutes long (even smoking breaks) are counted as hours worked.  In contrast, a 30-minute or longer bona fide meal break generally is not.  The employee’s break cannot be frequently interrupted for work-related duties, however, or it is compensable.  This has caught many employers in recent wage and hour cases.  Employers should have and enforce policies requiring employees not to work during their lunch breaks.

Training and meeting time

The general rule is that if the training relates to an employee’s job, that time is compensable.  Employees are entitled to compensation for this time unless:
  1. The attendance is outside the employee’s regular working hours;
  2. The attendance is voluntary;
  3. The training is not directly related to the employee’s job; and
  4. The employee performs no productive work during attendance at the training session.

Travel Time

According to the Portal-to-Portal Act, employers are not required to pay for time before and after an employee’s principal activity in the absence of a contract providing otherwise.
  1. Commuting time (to and from work) generally is not compensable except where an employee is temporarily assigned to work in another city outside his/her regular commuting area.  
  2. Travel on a work related assignment constitutes hours worked if the travel occurs during the employee’s normal working hours, regardless of whether the travel occurs on a day the employee normally would not have worked (e.g. Saturday or Sunday).  If the travel is outside normal working hours, however, it is not counted.  
  3. Examples of activities that generally are not part of an employee’s principal activity: A) Traveling to and from work, regardless of whether the travel occurs before or after the employee has clocked in or out B) Checking in or out and waiting in line to do so C) Washing up, showering, or changing clothes (*This is not always true, however, if a special uniform or equipment is required by the job, or health concerns require special hygiene or protective equipment). D) Waiting in line to receive paychecks

*Caution: these activities can be compensable if they are indispensable to the performance of the employee’s work, required by law, or required by rules of the employer or a union contract.  For example, if an employer requires all employees to wear uniforms at work which are not allowed to be worn outside the workplace, and under company rules the employees must change clothes on the premises, then the time spent changing into uniform is part of the employee’s work day.

On-Call Time (For Private Employers—Public Employer Rules Differ)

On-call employees must be compensated if they are required to remain on the employer’s premises or so close that they cannot use the time effectively for their own purposes.  Factors to consider are the frequency of calls actually received, as well as the existence of any employer-imposed response requirement that may effectively limit the employee’s freedom to use the off-duty time for his or her own benefit.  This determination is very fact-specific.  Examples of on-call time that is not compensable:
  1. Electric utility workers who were required to be available 24 hours per day on a stand-by basis during storms and emergencies.  The employer only required them to accept on-call assignments one-third of the time they were called.
  2. Drivers who, during 8 to 12 hour shifts, were required to respond to calls within 15-20 minutes.  They were allowed to make themselves unavailable for a specified period of time during the day.
  3. On-call time spent by a hospital biomedical equipment repair technician at home or at locations of his choosing was not working time even though he was required to be reachable by beeper, to not be too impaired to work on equipment, and arrive at the hospital within 20 minutes of being called.

To learn more about Adair Buckner and her practice visit her profile page and her Labor & Employment Law page.

Adair M. Buckner, Attorney at Law, is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. Her other areas of practice include business law, business disputes, commercial litigation, estate planning, and probate. You can reach Adair at (806)-220-0150 or adair@adairbuckner.com. This material is not intended to be legal advice. The contents are intended for general information purposes only.
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Article Topics:
Labor & Employment Law