Under federal law and many state laws, employers must pay nonexempt employees not only for time actually spent working, but also for certain nonproductive time. Below, we discuss seven scenarios in which paying nonexempt employees for nonproductive time may be required.
1. Business travel
Under federal law and many state laws, employers must pay nonexempt employees for certain time spent traveling for work. In such cases, the time must also be included when determining whether the employee is entitled to overtime in that workweek.
For example, when a nonexempt employee travels away from home for work, such as attending a three-day conference in another state, the employee must be paid for all travel time that cuts across their regular work hours, regardless of whether the travel occurs on their regular workday. If an employee's regular work hours are 8 a.m. to 5 p.m., Monday through Friday, you must pay the employee for business travel that takes place from 8 a.m. to 5 p.m., even if it occurs on Saturday or Sunday.
If a nonexempt employee regularly works at a fixed location in one city, but is given a special one-day assignment in another city, the time spent traveling to and from that special one-day assignment is considered hours worked and therefore must be paid. However, you may subtract the time it normally takes the employee to travel to and from their regular worksite
If you require the nonexempt employee to perform any work during their commute, the time the employee spends working and the time the employee spends traveling from the beginning of the first work-related duty to the work site (or home) would be considered hours worked under federal law. For example, if an employer asks an employee to pick up office supplies on the way to work, all of the time from the beginning of the stop to pick up office supplies until the employee arrives at the work site must be paid.
Some states have travel time rules that are even more generous to the employee.
2. Rest breaks
If you provide a rest break (any period lasting 20 minutes or less that the employee is allowed to spend away from work), it must be paid. In such cases, the time must also be included when determining whether the employee is entitled to overtime in that workweek.
Therefore, make sure employees don't punch out for breaks lasting 20 minutes or less. The duration of the break is generally the sole factor used when determining whether pay is required, not the reason for the break.
3. Non-compliant meals periods
For a meal period to be unpaid under federal law, the following two requirements must be met:
- The meal period must generally be at least 30 minutes without interruption; and
- The employee must be fully relieved of all duties for the purpose of eating a regular meal.
If the meal period doesn’t meet these requirements, it must be paid, and the time must be included when determining whether the employee is entitled to overtime in that workweek. For example, if you require employees to sit at their desk while they are eating their lunch in case any calls come in, they aren't completely relieved of duty and they must be paid for that entire time, even if they don’t answer any calls.
Check your state and local law for additional guidance on meal period requirements. For example, some states also require meal periods to be paid if the employer mandates that employees remain on company premises during their meal time.
4. Training
In most cases, federal law requires employers to pay nonexempt employees for the time they spend in training and include the time when determining whether the employee is entitled to overtime for that workweek.
For training time to be considered unpaid, the training must meet all four of the following criteria:
- Attendance is outside of the employee's regular working hours;
- Attendance is voluntary;
- The course, lecture or meeting is not directly related to the employee's job; and
- The employee does not perform any productive work during such attendance.
Under federal regulations, training is considered directly related to the employee's job if it is designed to help the employee handle their current job more effectively as opposed to training the employee might undergo for another job (such as a higher-level position).
5. Putting on and taking off required safety equipment
If the safety gear is required by law, the employer, or the nature of the work, then the time an employee spends putting on and taking off gear on the employer's premises must be paid. The time must also be included when determining whether the employee is entitled to overtime for that workweek.
If employees have the option and ability to change at home, there's no requirement for the time to be paid, even if workers choose to change at work, according to the Department of Labor (see whether the employee is entitled to overtime in Wage & Hour Advisory Memo 2006-2).
6. Drug testing
Whenever you impose special tests, requirements or conditions that your current employees must meet, the time must be paid. This includes time they spend traveling to and from drug tests, waiting for and undergoing these tests, or meeting other requirements. The time must also be included when determining whether the employee is entitled to overtime in that workweek.
Pay is required regardless of whether the tests are scheduled during the employee's normal working hours or during non-working hours. Federal law doesn’t require employers to pay candidates for time spent undergoing pre-employment drug testing.
7. Waiting time
There is no federal requirement for employers to pay nonexempt employees for a minimum number of hours if they report to work when there is no work available. However, if employees are required to report to work and must stay until a decision about closing is made, they must be paid for the time they spent waiting. The time must also be included when determining whether the employee is entitled to overtime in that workweek.
Conclusion
Make sure you are paying employees in accordance with federal, state and local requirements, and that you have systems and procedures in place for employees to report this time. The nonproductive time addressed above must typically be compensated at a rate no less than the highest applicable minimum wage. Check your state and local laws for details.
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