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Do I Have to Pay My Employees for That?

The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees for all "hours worked." This includes not only the time spent actually working, but also time spent on certain other activities. In this Tip, we address several workplace scenarios where pay may be required.

Pre-employment:

Q: My boss wants to start using "working interviews" before hiring new employees. Job candidates would work for a few hours or days in the job to determine whether they are a good fit for the position. Do we have to pay the applicants for their time on the working interview?

A: Yes, these individuals must be paid. Federal, state, and local enforcement agencies will generally consider these individuals employees of your organization and enforce employment laws accordingly. Thus, you must pay these workers at least the minimum wage, withhold taxes, and comply with all other applicable employment laws for the period the individual performs work.

Drug Testing:

Q: After we make a conditional job offer to candidates, we require them to go for pre-employment drug testing. Do I have to pay them for the time they spend taking the test?

A: The FLSA does not require employers to pay candidates for time spent undergoing pre-employment drug testing.

Q: Our company requires a drug test whenever there is a reasonable suspicion that an employee is impaired on the job. Do we have to pay current employees when they go for drug testing?

A: Yes, 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 the tests, waiting for and undergoing these tests, or meeting the requirements. Pay is required regardless of whether the tests are scheduled during the employee’s normal working hours or during non-working hours.

Medical Exams:

Q: Early in the workday, an employee was injured on the job and I asked her to go to the hospital for treatment. Does the employee have to be paid for the time she spent seeking treatment?

A: Yes, time spent waiting for and receiving medical attention at the employer’s direction (either on or off the premises) during the employee’s normal working hours must be paid.

Training:

Q: Do I have to pay non-exempt employees for the time they spend in required training?

A: Yes. In order for training time to be considered unpaid, the training must meet all four of the following criteria:

  1. Attendance is outside of the employee's regular working hours;
  2. Attendance is voluntary;
  3. The course, lecture, or meeting is not directly related to the employee's job; and
  4. The employee does not perform any productive work while attending the training.

Under the FLSA, training is considered directly related to the employee's job if it is designed to help the employee handle his or her current job more effectively. This is different from training the employee for another job, such as a higher level position.

Security Screenings and "Donning & Doffing":

Q: We require employees to go through a security screening at the end of their shift. It takes about 15 minutes to process all the workers through the security screening. Do I have to pay the workers for this time?

A: No. The employees don’t have to be paid for the time spent in pre-shift or post-shift security screenings. This was the subject of a recent Supreme Court ruling, which explained that an activity would generally be compensable if it is an "integral and indispensable" part of the employee’s principal work activities. In Integrity Staffing Solutions v. Busk, the Court ruled unanimously that even though the employer required the security screening, the activity was not an integral and indispensable part of the employees’ principal work activities, and accordingly, was not compensable work time.

Q: We require employees to put on protective equipment when they arrive at work so they can perform their jobs safely. Are we required to pay employees for the time they spend putting on and taking off the equipment?

A: Yes. If the 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 because it is considered an integral and indispensable part of the employee’s principal work activities. The time must be paid only when the employer or the nature of the job mandates that it take place on the employer’s premises. If employees have the option and ability to change at home, there is no requirement for the time to be paid, even if workers choose to change at work, according to theDepartment of Labor (see Wage & Hour Advisory Memo 2006-2).

Rest Breaks:

Q: My company provides employees with two 15-minute rest periods during the workday. These breaks aren’t required by any law—we provide them voluntarily for productivity and safety purposes. Do we have to pay employees for these breaks?

A: Under the FLSA, rest breaks of a short duration are generally paid working time. The Department of Labor (DOL) defines a rest break as any period lasting 20 minutes or less that the employee is allowed to spend away from work. The duration of the break is generally the sole factor used when determining whether pay is required, not the reason for the break (e.g. for a cigarette, coffee, snack, or to make a personal phone call).

Q: We provide a 10-minute rest period three times per shift. Some employees are extending these breaks to 20 minutes without authorization. Do I have to pay them for the extra break time?

A: Generally, when employees take unauthorized extensions of rest breaks, the time must be paid if the rest period lasts 20 minutes or less. However, the FLSA permits employers to exclude unauthorized extensions of rest periods from hours worked as long as the employer expressly and clearly advises employees that:

  • Breaks may only last for a specified duration (e.g. 10 minutes);
  • Unauthorized extensions are in violation of the employer's rules or policy; and
  • Violations of the employer's policy will be punished

Company Parties:

Q: Our company is having a party for our 5th anniversary. Do we have to pay employees for the time they spend at the party?

A: If the party is required or it occurs during work hours, employees must generally be paid for the time they spend at the party.

Company Closings:

Q: I just started my own roofing company. Yesterday, the weather was too cold, so I sent my employees home before they started their workday. Do I have to pay them a certain number of hours?

A: There is no federal requirement for employers to pay non-exempt employees for a minimum number of hours if they report to work when there is no work available. However, some jurisdictions, such as the District of Columbia, California, Massachusetts, New Hampshire, New Jersey, New York, and Rhode Island have report-in pay requirements. Employers should check their applicable state laws to ensure compliance.

Note: 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.

Conclusion:

Employers must pay employees for all the time considered "hours worked" under federal, state, and local law. Where these laws conflict, the law more generous to the employee generally applies. The DOL has created a fact sheet on hours worked, which can be found here.

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