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 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:
- A hospital employee who must stay at the hospital in a call room. While on-call, the employee can sleep, eat, watch television, or read a book, but is not allowed to leave the hospital.
- 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.
On the other hand, if an employee simply has to carry a phone or pager, that usually does not usually count as hours worked.
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:
- If you send the employee on a one-day assignment to another location, the time spent traveling to and from that location must be counted as work time. Massachusetts wage-and-hour regulations also provide that “if an employee that regularly works at a fixed location is required to report to a location other than his or her regular work site, the employee shall be compensated for all travel time in excess of his or her ordinary travel time between home and work and shall be compensated for all transportation expenses.”
- Other travel time during a normal workday must be counted as hours worked when it is part of the principal job activity or when travel is necessary from job site to job site.
- Travel away from home during regular work hours that includes being away overnight is also work time when it includes the employee’s workday. This is true even on non-workdays. For example, it counts as hours worked when an employee travels on Saturday (normal work week 9 am – 5 pm, Monday through Friday) between 9 and 5 even if the only activity the employee is doing is traveling.
- If your employee is required to work while out of town (e.g. business activity after work in the evening) that is paid time as well.
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 individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
- the service is performed outside the usual course of the business of the employer; and,
- the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
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:
- Attendance occurs outside the employee’s regular hours
- Attendance must be voluntary
- The training is not directly related ot the employee’s job
- The employee does not perform any productive work while attending the training
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.
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:
- as a driver or helper on a truck with respect to whom the Interstate Commerce Commission has power to establish qualifications and maximum hours of service
- businesses or portions of a business operating in a seasonal nature (not in excess of a total of one hundred and twenty days in any year)
- in a hotel, motel, motor court or like establishment
- as a garageman, which term shall not include a parking lot attendant
- in an amusement park containing a permanent aggregation of amusement devices, games, shows, and other attractions operated during a period or accumulated periods not in excess of one hundred and fifty days in any one year.
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.