Q: My employees complain that they should be paid for traveling to job sites, computer startup time, and other time when they are not actually doing work. Are they right?
A: With ongoing minimum wage discussions and a proposal to double the overtime eligibility threshold (thus increasing the number of workers who would be entitled to overtime pay, regardless of being classified as “salaried”), more employers are getting concerned about tracking hours accurately. You typically do not need to pay employees the moment they leave their house, but failing to pay them for downtime during their continuous workday can inadvertently create a basis to be sued for unpaid wages, minimum wage violations or overtime violations.
The general rule is that employees should be paid from the time they start their first work activity until they finish their last work activity, with work activities including those steps other than normal commuting that are primarily for the benefit of the employer. Waiting, walking, and traveling between job sites in between the first and last work activity are part of the continuous workday and are typically compensated (except for meal breaks). But the commute at the beginning and end of the day, or arriving at a time of the employee’s discretion and waiting for a first work activity, is typically not compensated, even if employees are carpooling and discussing work-related issues, traveling in employer-supplied vehicles, or transporting work equipment from home. An exception can exist when an employee has an unusual assignment to travel to another city for work.
Time checking voicemails, reading emails, developing an employer-required plan or route for the day, completing required paperwork, or loading or stocking equipment can all be compensated, along with the starting up of a computer. Some employees take advantage of the computer startup trigger by turning on their computer and spending several minutes getting coffee and socializing. Employers might eliminate these extra minutes of compensation time by requiring such personal activities to take place before the power button is pressed.
Employees who are required to arrive at a location at a specific time and then wait for assignments begin their work day at latest at the specific time the waiting begins, except that under some circumstances this time might not be compensable if the employee is free to use the time for personal purposes. Employees who are required as an integral and indispensable activity to put on specified protective clothes on the employer’s premises start their work day at latest when they start to put on those clothes.
The employer is also liable for off-the-clock work time if the employer knew or should have known that the employee was working. For this reason, employers are often best advised, where feasible, to have clear employee policies prohibiting work and access to work emails outside of normal hours.
To be sure, it is recommended that employers track the hours of any employee who either is paid hourly, does not clearly fall within one of the legal exceptions to overtime pay (not covered in this article), or could feasibly work enough hours that he falls below the minimum wage.
Clearly, there are pitfalls awaiting employers. A review of employee manuals and time tracking procedures with a qualified professional is wise.
Published as part of my law firm’s biweekly column in The Ledger here.