Department of Labor and Unpaid Work Hours

The U.S. Department of Labor is back in the enforcement business.

The problem: Everyday practices of 70% of employers result in unpaid “work” hours that the employer has no idea are unlawful, but that do, in fact, violate the Fair Labor Standards Act (FLSA).

The DOL solution: A huge jump in wage-hour audits. Another 350 investigators are being added, an increase of more than one third, and DOL has proposed $241 million to pay for the expanded enforcement.

Here are some typical examples:

Punching in early (or punching out late). Tony punches in 15 minutes before starting time. The violation: If you are audited, you would have to prove that Tony was not working, because DOL assumes that an employee who has punched in is working.

“Downtime.” Marina’s workday starts at 9, but she has a long drive and must drop off two children in different places, so she ends up getting in a little after 7:30, has breakfast at her desk and reads celebrity magazines. The violation: If a customer happens to call, or Marina suddenly remembers something she must attend to and pulls a file so she won’t forget, she is working and must be paid for the hour or portion of the hour when the client called and she pulled the file.

Chatting during breaks. Bill gets in half an hour early to have a cup of coffee while he talks sports with coworkers. The violation: If, while chatting with coworkers, any business matters happen to creep into Bill’s chats, that is paid work time and all of the workers involved in the conversation must be paid for that time. How does DOL know about this? It doesn’t—unless you are audited, at which time DOL staffers will conduct lengthy interviews with hourly workers.

Checking e-mails from home. Before leaving for work, James, who lives over an hour away, checks his Blackberry (or other device) for business e-mails. The violation: DOL considers this unpaid work time.

How to avoid federal pay violations with hourly employees:

  • Require employees to accurately record all work hours and to submit a timesheet or comparable record that they certify as accurate and submit in a timely manner.
  • Require managers to review these records promptly to identify any inaccuracies.
  • Prohibit employees from reporting to stations before start time.
  • Prohibit employees from working while they are on a lunch break.
  • Discipline employees for improperly clocking in or out.
  • If you pay Jo for working Wednesday from 9-5, but have a series of business e-mails from her between 7-9 a.m. or 6-8 p.m., DOL considers this unpaid work time.
  • Require managers to report any and all suspected off-the-clock work so that it is paid, and steps can be taken to prevent off-the-clock work in the future.
  • If there is a wage-hour audit, have ready accurate, indisputable records of hours worked.

Helpful hint: An automated time and attendance system is an easy-to-use tool for staying in compliance with wage-hour regulations. Many such systems are programmed to alert you to potentially costly issues. Some can prevent early punch-ins of more than a few minutes.

Please contact us for more information.

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