Various questions and answers about the work (Part 1)

Do we have to pay hourly employees a daily minimum? 08-01-00

I have heard that there is a law that employers have to pay a minimum of hours worked for part time employees who work on the clock. e.i. An employee comes in to work on an unschedualed day (because he/she is asked too) and works only 1.5 hrs. By law he/she has to be paid for three hours. Is this true? Is it Federal or State level? What resource can I use to find this law?

Rita Risser responds:

Many states have laws requiring minimum or show up pay. In California, for example, it is 3 hours. This is required if the employee comes in on a day when they are scheduled to work longer, but are sent home early, or on a day when they are not regularly scheduled to work. There are also some exceptions if the short hours are due to acts of God.


Must new employees be paid for orientation?

Is the newly hired employee entitled to receive pay for the time spent completing Personnel paperwork, property tour, orientation?

Rita Risser’s response:

Yes.


Do we have to pay employee for going for drug test?

If I were to direct an employee to visit a drug testing lab during his lunch period or after he got off work, would the time spent traveling to and from the lab as well as the time spent being tested be compensable under FLSA?

Rita Risser’s response:

I could not find the answer to this specific question under the FLSA. In California and probably many other states, an employer-mandated medical examination is considered hours worked. Under the FLSA, time spent for training after regular working hours is considered hours worked if attendance at the training is required by the employer. I think drug testing after hours would be considered comparable to mandated training, and therefore would be compensable.

I don’t think the answer would be any different if you were a Temporary Agency.

I do want to confirm that this is a random drug test or a test part of a regular medical check, and not a test where the employer has reason to believe the employee is on drugs. There is a recent case in California which persuasively argues that where an employer sends employees for drug tests and tells the employees to drive themselves, the employer could not legally have a reasonable suspicion that the employees in fact were under the influence of drugs.


Do we have to pay military reservists?

Under our policy we pay employees the difference between military reservist pay and the employee’s regular pay. A reservist says this is discriminatory because we don’t do this for people on jury duty (We also continue their pay). I contend we do not collect money from jurors for two reasons: first, that is it is minimal and secondly, it is for expenses, not for services rendered.

Rita Risser’s response:

Under federal law, you are not required to pay military reservists or jurors anything. You are only required to give reservists time off, with their jobs guaranteed upon their return from duty. I am not aware of any state laws requiring you to make such payments, although you may want to check with your state chamber of commerce or a local attorney.

Any time you treat two groups differently, you should justify the inconsistent treatment by having a legitimate business reason. The reasons you state for the different treatment of jurors sound legitimate to me.


Do we have to pay employees for wearing beepers?

If a non-exempt employee carries a beeper with him during his lunch hour, with the potential of having to return to the workplace in the event of an emergency, is this (a) legal? and (b) does he have to be paid for this time even when he is not beeped?

Rita Risser’s response:

It is legal for non-exempt employees to be required to wear beepers 24 hours a day. You only have to pay for the time they are responding to the beeper.


Do we have to pay for travel time?

What is the current FLSA requirement for the payment of nonexempt salaried or hourly employees who are required to travel by car, plan, bus, train, etc on business? Is the rate of pay at straight time or overtime?

Rita Risser’s Response:

First we have to decide which hours are considered work time. On a single day trip, all travel hours are considered working hours, unless that trip is partly by public transportation. If so, then the “commute” from home to the terminal and back is not work time.

For multiple day trips, time spent as a passenger is working time if it occurs during regular working hours (including those same hours on the weekend days). Time spent as a passenger outside of normal working hours are not considered work time, unless the employee is actually working during that time. Note to employees: this means you should watch the movie or read your novel during regular working hours, then get out the laptop after 5.

For either one or multiple day trips, you also can deduct their normal meal period.

Overtime pay kicks in whenever the employee works more than 40 hours a week. So if your work week starts on Sunday morning at 12:01, and the employee flies out on Sunday, the employee is paid straight time, but by the time they fly back during the day on Friday, they may be at the overtime rate.

Now here’s the interesting part: you can pay a different rate of pay for travel time. The employee must be informed beforehand (in writing is best) and the pay may not be less than the minimum wage. One of my clients pays $25 for work and $23 for travel.


 

What are penalties for failure to pay overtime?

I’m a financial officer living in the State of Georgia. Why are the small businessmen I meet so resistant to the idea of paying time and a half for overtime? They would rather risk being in violation than pay it. Are the penalties that minor? Are they that unfeeling towards the people that work for them? It makes no sense to me and I was just curious to how widespread this civil disobedience is?

Rita Risser’s Response:

The penalties are not particularly minor, but most employers don’t get caught, and employees often buy into it because they like to think of themselves as being “exempt.” I think it is very widespread, especially among professional offices such as lawyers and doctors, who believe that they are exempt from most laws.

An employer is only subject to the federal Fair Labor Standards Act if the employer is engaged in interstate commerce and has revenues of over $500,000. It is possible that the entrepreneurs you mention do not meet this threshold and are not subject to federal law. I do not know if Georgia has separate laws that apply.

If an employee sues for back overtime under the FLSA, the penalties for violation are (1) payment of back overtime, (2) liquidated damages in an amount equal to the back overtime, and (3) payment of the employee’s attorney’s fees. If the Department of Labor brings an action, they can obtain (1) and (2) above, as well as a fine of $1,000 per violation. I believe the DOL counts each paycheck that does not contain overtime as a “violation,” so it’s really $1,000 per pay period.

A “wilful” violation can lead to a criminal penalty of $10,000 and up to six months in jail.

Both the Department of Labor and state wage and hour agencies have been vigorously prosecuting class action claims, which easily can run into millions of dollars since they cover many employees and can go back for the prior three years. It’s probably only a question of time before one of these folks gets caught, and then they’ll whine that nobody told them!


 

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