What Constitutes Compensable Work on the Job?
The great amount of wage matters that seem to arise involve not crediting various hours worked and, as a result, not paying straight and overtime. Under the law, when a violation is found we are able to recoup this amount up to 2-3 years back, depending on whether the violation appears intentional on the part of the employer. Likewise, we are able to get attorney fees and liquidated damages. Liquidated damages can be up to an additional 100% of straight and overtime owed. Thus, the employee may be owed back double the amount that was wrongfully withheld. These claims generally involve the questions– what hours were worked and was the employee exempt from such claims.
Hours worked will of course include actual time working for the employer. However, there is more to it than that. Commonly, claims may involve meal and break time, travel, training, time you are required to wait or be in premises without having a specific duty, on-call time, preliminary or postliminary activity. These claims may appear to be trivial, but they add up quickly and, if the pay policy is followed company-wide they may add up to a significant amount.
Meal and break times of at least ½ hour may be without pay if the employee is completely relieved of duty, if the time is not used predominantly for the benefit of the employer, and the employee not performing substantial duties.
Travel between an employee’s home and place of work is not considered working time. Travel during the workday from the employer’s place of business to a job site is, however, compensable. All time spent in travel to another city for a one-day trip is considered hours worked. Travel from the employee’s home to an airport or other means of transportation or from the airport to the employee’s home is not, however, considered hours worked. The employer may exclude any regular meal period from such hours.
Where the trip exceeds one day, all time spent in travel that corresponds to the employee’s normal working hours is compensable, whether travel is on a weekday or a weekend. Also, travel time outside of the employee’s normal working hours is not compensable.
During shifts less than 24 hours where an employee may sleep or perform personal activities while on duty the time so spent is considered hours worked. Where, however, the employee’s shift exceeds 24 hours and he is given an assigned sleeping time of no more than 8 hours along with appropriate sleeping facilities, the sleeping time need not be counted toward hours worked. If the employee is interrupted during the sleep period, however, then he must be compensated for the time worked. If the interruptions are such that the employee cannot obtain at least 5 hours of sleep during the sleeping period, the entire period must be counted as hours worked.
Waiting or on-call time during the workday may be counted as hours worked depending on whether the time is primarily for the benefit of the employer and the degree of control the employer retains over the employee during the waiting period. When the employee is unable to use the time for his or her personal business, the waiting time is counted as hours worked. However, these cases are so individualized a small change of fact often means the wait/on-call time is not compensable.
Training time can be understood to the extent that training is not counted as working time as long as it meets the four criteria: (a) Attendance is outside of the employee’s regular working hours; (b) Attendance is in fact voluntary; (c) The course, lecture, or meeting is not directly related to the employee’s job; and (d) The employee does not perform any productive work during such attendance. If any of these factors is not met, then the training must be paid.
Preliminary and postliminary work activities, such as going through a security line or getting dressed in particular protective equipment, have been so spliced by the Supreme Court that to view these cases on anything other than a case-by-case basis is a mistake. Generally, the Supreme Court states that the pre- or post-work activity must be “integral and indispensable” to the principal activities the employees were employed to perform. It would seem from the decisions that the employee must be doing something specific to the job – cleaning equipment, putting on special clothing or gear. However, just generally having to wait in line to go through a security check or walk from one area to another will not be compensated.
If you find yourself not being paid for work performed, please do not hesitate to contact The Schipper Law Group here or call us at (248) 729-2414. We have helped many employees recover their due wages.
This is an excerpt from our book Know Your Rights, A Worker’s Guide to Michigan Employment Law. If you are interested to learn more about wage and hour law or the many specific nuances to Michigan employment law, you may download a free copy of the book here.
