Wage theft occurs when employers don’t pay employees everything they are owed by law. Generally, the Fair Labor Standard Act (FLSA) requires employers to pay employees for all work time. There are common issues in FLSA and some gray areas though- including break periods or time spent driving from one job site to another. The question becomes what time spent at work is not “compensable time”.
Recently the Department of Labor issued two “opinion letters” regarding compensable time. The first dealt with rest breaks required for an employee’s health condition covered under the Family and Medical Leave Act (FMLA). The second deals with travel time before, during, and after work.
The Supreme Court has ruled rest breaks taken for up to 20 minutes benefit the employer and not the employee. This means these breaks would be “compensable time” under the FLSA. However according to the Department of Labor, when the breaks are taken because of the employee’s covered medical condition, they are for the benefit of the employee and are not “compensable time”. So breaks taken to smoke are covered, but breaks taken pursuant to a doctor’s orders are not. Makes perfect sense if you don’t think about it….
Travel time to the workplace and from the workplace home are usually not “compensable time”. However travel time from job site to job site during the say is “compensable time”. This is where things get a little wonky though: if an employee is required to travel away from home community (plane ride, train, etc.) and the travel occurs during the normal working hours of the employee- then it is compensable. However if the travel occurs outside the employee’s normal work hours- then it isn’t compensable. So if a person works from 9 to 5 and takes a plane trip from 3 pm to 5 pm, then that time is compensable. However, if the employee takes the same play trip from 7 pm to 9 pm, then that time is not compensable. Can’t make this stuff up.
The recent opinion letter from the Department of Labor dealt with employees who don’t have “normal work hours”. That is, they work different hours almost every day. The opinion letter provides several options for employers to determine “normal working hours” for these employees. These methods might include averaging the starting and quitting hours of employees during their time at work. Or maybe it would the typical work schedule of the employee over the previous month or so. In other words, they created a whole lot of gray area that will no doubt lead to lots of arguing back and forth about what is compensable time in this situation.