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A Wage-and-Hour Primer

January 2, 2017 | HR Edge Article 

When does work begin and end? The general rule under the federal wage-and-hour law is that work time begins when the employee commences doing activities on the employer’s behalf and ends when those activities are finished. Massachusetts has some of its own laws and rules regarding wage-and-hour issues - employers must follow the law that is most favorable (stricter) to the employee.

Hours worked means actual time spent working for which an employee must be paid. These hours count toward the 40-hour work week and overtime. Paid time includes working time plus other paid time such as holiday pay, paid time off, and earned sick time, which may or may not count as hours worked for purposes of overtime.

Sounds simple, but there are always challenging circumstances. Here are a few, taken from questions to the AIM Employer Hotline, court cases, and non-payment-of-wage claims reported by the Attorney General’s Fair Labor Division. Under Massachusetts wage-and-hour laws an employer found to have violated these laws may be subject to a back pay award of treble damages plus attorney’s fees.

Engaged to wait, waiting to be engaged

Engaged to wait means that an employee who is at work and waiting to be assigned a task is considered to be working. Such an employee is deemed to be on duty because his or her time is controlled by the employer and the waiting time is usually of a relatively short duration. An employee who is engaged to wait must be paid for his or her time.

The employee does not have to be paid is he/she is waiting to be engaged, a status in which the employee is completely relieved of duty and may use the time for his/her own purposes.

On-Call time

On-call time is different than waiting time. It must be counted as hours worked when the employee is required to remain on call so that he/she cannot use it for personal purposes. Two examples of on-call time are:

On the other hand, if an employee simply has to carry a phone or pager, that usually does not usually count as hours worked.

Travel time

While you don’t have to pay your employees for commuting time, there are many work-related trips for which you do have to pay:

 

Meal Breaks/Rest Periods

Under Massachusetts law, an employee must be relieved of all duties and given a 30-minute unpaid meal break if scheduled to work more than six hours per day.  If an employee is asked or required to work through a meal break, the employee must be compensated for the time. Depending on the hours worked in a given week, this may trigger overtime pay. An employer may ask an employee to work through a meal break by signing a waiver, but the right to the meal break belongs to the employee and with the exception of very few job duties, the employee may not be forced to waive it. And if the employee does waive the meal break, the employee may reclaim it at any time.

Breaks of 20 minutes or fewer (e.g. coffee breaks) must be counted as work time, and the employee must be paid for that time. However, no law requires an employer to offer a coffee break. Only the meal break is required, assuming the employee works the requisite hours.

 

Misclassification of non-exempt employees as exempt

Employers who pay employees on a salary basis sometimes assume that they are exempt from overtime.  While the employee may be paid on a salary basis unless the employee meets the FLSA exempt duties test the person is non-exempt (i.e. entitled to overtime after 40 hours). Being paid a salary or having a specific job title does not make an employee exempt.

 

Misclassification of employees as independent contractors

Misclassification occurs when someone is performing the duties of an employee but is not properly classified as one, leading to failure to pay minimum wage, overtime, unemployment insurance, workers compensation and other employment-based requirements. Massachusetts has a rigid three-factor test that an employer must overcome to prove a person is an independent contractor:

The company must be able to show compliance with all three factors, not just one or two.
 

Attendance at training programs, lectures, and meetings

While sometimes couched in the language of voluntary participation, attendance at training programs and meetings is often mandatory. If so, the time must be counted as work time even if it is outside the normal work day. To be counted as voluntary, the following four criteria must be met:

 

Overtime

Compensation for working over 40 hours must be paid as overtime. Overtime applies after the employee has worked 40 hours in that week. That means that an employer may not average the employee’s hours over a two-week pay period to reduce or eliminate the obligation to pay overtime. The Fair Labor Standards Act does not require extra pay for weekend work, but non-exempt employees must be paid at least 1.5 times their regular rates of pay for the time worked over 40 hours in a workweek whether worked on regular workdays or on the weekend.

 

Sunday Premium pay

Massachusetts Blue Laws require retail employers that schedule employees to work on Sunday to pay them 1.5 times their regular pay (i.e. premium pay) even if the employee has not worked the 40 hours typically required to trigger overtime. However, an employee who has worked 40 hours and is then asked to work on Sunday for hours that would be considered overtime, does not need to be paid both overtime and premium pay. The employer need only pay 1.5 times the employee’s hourly rate.  

All other employers are not required to pay overtime or double time for weekend work unless their employees have worked more than 40 hours per week.

 

Nightwork and shiftwork

Extra pay for working night shifts (shift differential) is a matter of agreement between the employer and the employee (or the employee’s representative). The FLSA does not require extra pay for night work. However, the FLSA does require that covered, non-exempt workers be paid not less than 1.5 times their regular rates of pay for the time worked over 40 hours in a workweek.

Mandatory Overtime

Employers may require employees to work overtime as a condition of employment. Any employer intending to do so should inform the employee through a policy in the handbook or other statement to make sure that the employee is aware of the policy. Massachusetts General Laws chapter 151, section 1A includes a list of job categories that are excluded from the requirement to pay overtime. While employers are encouraged to check the list for specific occupations, some of the categories are:

 

Nursing breaks

The Affordable Care Act of 2010 requires employers to provide nursing mothers reasonable break times to express breast milk for up to one year after a child’s birth each time such employee has the need to express the milk. Employers are also required to provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk. 

While the law applies to all employers, employers with fewer than 50 employees are not subject to the requirement if compliance would impose an undue hardship. An undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business.

Wage and Hour laws remain a challenge for many employers. If you have a question about one of these laws or any other HR related matter, please contact the AIM Employer Hotline at 800-470-6277.

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