Common Violations of the FLSA
Many common violations are listed on this page. Not all violations can be listed here. Of course, this information is no substitute for the advice of a qualified attorney. You are welcome to contact us if you have any questions.
Employers frequently fail to pay employees for all compensable work time as defined by the. This section provides general information concerning what constitutes compensable time under the FLSA. The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. The amount employees should receive cannot be determined without knowing the number of hours worked.
Definition of “Employ”
By statutory definition the term “employ” includes “to suffer or permit to work.” The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place. “Workday”, in general, means the period between the time on any particular day when such employee commences his/her “principal activity” and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.
It is the duty of management to exercise control and see that work is not performed if the employer does not want it to be performed. An employer cannot sit back and accept the benefits of an employee’s work without considering the time spent to be hours worked. Merely making a rule against such work is not enough. The employer has the power to enforce the rule and must make every effort to do so. Employees generally may not volunteer to perform work without the employer having to count the time as hours worked.
Application of Principles
Employees “Suffered or Permitted” to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.
Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). Time which an employee is required to be at work or allowed to work for his or her employer is hours worked. A person hired to do nothing or to do nothing but wait for something to do or something to happen is still working. For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. In each of these situations, the employees have been "engaged to wait" and the time is hours worked. Waiting is an essential part of the job.
The time is hours worked even though you are allowed to leave the premises or the job site during such periods of inactivity. The period during which the inactivity occurs is unpredictable and is usually of short duration. In either event, you are unable to use the time effectively for your own purposes. The time belongs to and is controlled by your employer.
Off-Duty Waiting Time: Off duty waiting time or layover time is a period during which you are waiting to be engaged and is not hours worked.
Off duty waiting time or layover time is not hours worked if:
You are completely relieved from duty;
The periods are long enough to enable you to use the time effectively for your own purposes;
You are definitely told in advance that you may leave the job; and
You are advised of the time that you are required to return to work.
Your employer must meet all of the above requirements or you are working while waiting. Whether the time is long enough to enable you to use the time effectively for your own purposes depends upon all of the facts and circumstances of the case.
For example, you are a truck driver sent from Washington, D.C., to New York City, leaving at 6:00 a.m. and arriving at 12:00 noon. If you are completely and specifically relieved from all duty until 6:00 p.m. when you again go on duty for the return trip, you are waiting to be engaged and the time is not hours worked.
On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.
On-call situations vary. Some employees are required to remain on the employer's premises or at a location controlled by the employer. One example is a hospital employee who must stay at the hospital in an on-call room. While on-call, the employee is able to sleep, eat, watch television, read a book, etc. but is not allowed to leave the hospital. Other employees are able to leave their employer's premises, but are required to stay within so many minutes or so many miles of the facility and be accessible by telephone or by pager. An example of this type of employee is an apartment maintenance worker who has to carry a pager while on call and must remain within a specified number of miles of the apartment complex.
All of the time during which you are on call, on the employer’s premises or at another assigned workplace, as well as all other time during which you are suffered or permitted to work for the employer, is generally hours worked.
If you are not required to remain on the employer’s premises but are merely required to leave word where you may be reached you may not be working while on-call. However if the on-call conditions are so restrictive or the frequency of call-ins is so high that you cannot effectively use on-call time for your own purposes, the on-call waiting time would be counted as hours worked.
Although your employer may require you to be accessible by telephone or by paging device, or establish rules governing use of alcohol or participation in other activities while you are on-call, you may still be able to use the on-call time to engage in personal activities, such as cutting the grass, going to the movies, going to a ball game, or engaging in other activities of your choosing.
The other consideration in determining whether you can use the on-call time for your own purposes is the frequency of the work calls you receive during your on-call time. If your on-call time is interrupted to such an extent that you cannot conduct your regular activities, you probably cannot use the on-call time for your own purposes. For example, if you are unable to finish a meal, read a story to your child or read a newspaper during the same on-call period, you probably cannot use the time effectively for your own purposes.
An employee who is on-call must be able to use the idle time for his or her own purposes or the on-call time is probably hours worked. When you are on-call, all time spent responding to calls is hours worked.
Rest Periods: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished.
Meal Periods: Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.
An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken.
Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.
Dispute Resolution: Time spent in resolving grievances between an employee and an employer, during the employee’s scheduled workday is hours worked.
Rework: When an employee must correct mistakes in his or her work, the time must be treated as hours worked. The correction of errors, or “rework”, is hours worked, even when the employee voluntarily does the rework.
Place of Work: Hours worked include all the time during which an employee is required or allowed to perform work for an employer, regardless of where the work is done, whether on the employer’s premises, at a designated work place, at home or at some other location.
Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.
Home To Work Travel (Commuting): An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time. This is true whether you work at a fixed location or at different job sites.
However, if your employer requires you to perform some work-related duties while traveling between your home and the work site, the time may be hours worked. Some examples of such work related duties which may be hours worked include:
Providing transportation for other employees to or from the work site;
Picking up supplies or equipment from local suppliers while traveling to or from the work site; or
Stopping at his or her place of business (e.g. home office) to pick up supplies, tools, to receive instructions or do other work there before traveling to or from your work site.
If you use your employer’s vehicle, then for your time spent commuting in your employer’s vehicle to not be considered hours worked, the following criteria must be met:
It is a vehicle of a type normally used for commuting;
You are able to use the normal route for the commute;
You do not incur any additional costs using your employer's vehicle;
The home-to-work travel is within your employer's normal commuting area; and
The use of the vehicle for commuting is subject to an agreement between you (or your representative) and your employer.
Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.
Home-To-Work, Emergency Situation: There may be instances when travel from home-to-work is hours worked. For example, if you have gone home after completing your day's work and are subsequently called to travel a substantial distance to perform an emergency job at one of your employer's customers' work sites, all time spent on such travel is hours worked.
Travel That is All in the Day's Work: Time spent by an employee in travel as part of his/her principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked. When traveling to the work site, all of the time spent traveling from the beginning of your first work-related duty to the work site would be hours worked. For example, if it normally takes you 30 minutes to travel to the work site, but you have to make a work- related stop, which is 10 minutes from your home, all of the time from that stop until you arrive at the work site is hours worked.
The same would be true of the travel from the work site to home. All of the time from the work site to the point where you finish your last work related duty would be hours worked. For example, if you are directed by your employer to provide transportation home for other workers, the time you spend taking the employees from the work site to their homes is hours worked. The time you spend going to your own home from that of the last passenger would not be hours worked, but would be ordinary home-to-work travel.
Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee's workday. You are simply substituting travel for other duties.
The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. If you are a passenger and some part of your travel occurs outside of regular working hours, the travel time outside of your normal hours is probably not hours worked. If you are driving while traveling, the travel time outside of your normal hours of work could be considered hours worked, depending on the circumstances. As an enforcement policy the Department of Labor will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
Work Performed While Traveling: Any work which you are required to perform while traveling must be counted as hours worked. This would include activities such as driving, mandatory reading, clerical work, acting as a tour guide, etc.
If you drive a truck, bus, automobile, boat or airplane, or you are required to ride therein as an assistant or helper, you are working while riding, except during meal periods or during sleep periods.
If you are offered public transportation but request permission to drive your automobile instead, the employer may count as hours worked either:
the time spent driving the automobile, or
the time he or she would have to count as hours worked if you had used the public transportation.
Show-up Time: Sometimes when you arrive for work, at the time your employer directed you to be there, you are sent home before you perform any work. The FLSA does not require an employer to consider any of this time as hours worked or to give you show-up pay.
For example, an employee of a roofing company arrives for work at 8:00 a.m., as he or she was told to do. The employer tells him or her that they will not be working that day because it is too cold. The employee is sent home. Since the employee did not perform any work, the FLSA would not require the employer to consider any of the time as hours worked or to give the employee show-up pay.
However, some employers and employees have informal or contractual agreements (Collective Bargaining Agreements) which require a set number of hours be considered hours worked. Some states also have such a requirement.
Physical Exams, Fingerprinting and Drug Testing: After being hired, employers often require employees to take certain tests as they begin employment or on a periodic basis during their employment, such as physical examinations, fingerprinting and drug testing. Whenever an employer imposes special tests, requirements or conditions that you must meet, time you spend traveling to and from the tests, waiting for and undergoing these tests, or meeting other requirements is probably hours worked.
It does not matter whether these tests are scheduled during you normal working hours or during your non-working hours. Time spent in these activities is time during which your freedom of movement is restricted for the purposes of serving your employer and during which you are subject to your employer’s discretion and control.
Suggestion Programs: Some employers use suggestion programs to encourage their employees to make suggestions to help do the work faster and better. Generally, if you spend time outside of your regular working hours developing suggestions under the suggestion program, the time is not hours worked. If you are permitted to work on suggestions during regular working hours, that time is hours worked. If you are assigned to work on the development of a suggestion, or to review suggestions submitted by others, the time is considered hours worked.
National Guard/Reserve Duty: Employers of employees serving in the National Guard or in the Military Reserves are not required to consider time spent in such activities as hours worked for the company.
Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.