A Slow March toward Better Balance in the Workplace (Part IV)

By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University

Note: This article contains content adapted from lesson material written for APUS classes. This is the fourth article in a five-part series on the slow growth and evolution of federal laws that protect employee rights in the workplace.

In the previous parts in the series, we talked about the importance of power balance in the workplace, the role of the National Labor Relations Act (NLRA) in protecting workers’ rights to unionize, and the Fair Labor Standards Act (FLSA) and its minimum wage and overtime provisions.

Beyond minimum wage and overtime protections, the FLSA also settled important questions determining the kinds of time for which employers are (and are not) required to pay employees, and what does and does not constitute paid time.

For example, do coffee breaks count as paid time? What about travel time? And training hours? The answer to most of these questions is yes, employers are required to pay for these situations. More specifically:

• Time spent on-call at the premises of a job awaiting requests for performance of duties is covered. For example, firefighters on duty awaiting an alarm are paid for their “waiting” time.
• Coffee breaks, snack breaks, bathroom breaks, and rest periods of 20 minutes or less are all covered.
• Travel that is required from one job site to another is also covered. However, travel to and from a single job site for work each day (i.e., a regular commute of home to office and return) is not.
• Training time is covered, although exceptions exist when a job offer is not made until the successful completion of a preliminary training agenda. The training in this sense becomes part of the job application and interview. But this is a rare practice and should be avoided unless absolutely necessary.
• Time necessary to prepare for work once an employee has arrived at a job site is covered, such as retrieving and donning uniforms, signing out equipment, and counting cash banks out and back in at the end of a shift. I wrote an article about how failure to compensate employees for time spent changing clothes can cost an employer millions of dollars.

Rounding Off Time Entries for Pay Calculation

One issue that arises in the workplace is rounding off time entries for pay calculation. The FLSA permits rounding off to the nearest 15-minute increment for the purposes of simplifying payrolls, but this must be done in a fair and equitable way. In a 15-minute increment, employers are permitted to round down an employee’s clock punches from minutes one through seven, but they must likewise round up time punches from minutes eight to 14.

For example, if an employee clocks in at 8:56, her time may be rounded to 9:00. However, if that same employee clocks out at 5:09, her punch must be rounded to 5:15. This rounding off scheme creates a policy of fairness that tends to add as much to employee time in the aggregate as it subtracts.

However, even though the rounding off rules require employers to pay for all time on an employee’s true and accurate timecard (e.g., changing punches to avoid payment is illegal), employers are still free to set policy concerning acceptable punch times. They can also discipline any employees who violate those policies, up to and including termination.

Unless it is expressly agreed to by the employee at the time of hiring, compensation cannot be withheld or “docked” as a form of punishment for undesirable behavior. But that employee can still be fired for breaking the rules.

State and Local Laws and Even Union Agreements May Expand upon Coverage

It is important to remember that state and local laws, and even union agreements, may expand upon coverage. They may include such mandates as required break intervals based upon hours worked and other paid time. Employers should ensure that their policies are in alignment with all obligations, legal and contractual.

An employee who is the victim of an FLSA violation in the workplace may pursue a legal remedy in two ways. First, the employee may directly sue the employer for damages based on the FLSA violation. Second, the employee may file a claim with the Wage and Hour Division of the U.S. Department of Labor, which will handle the investigation and remedial measures in much the same way that the Equal Employment Opportunity Commission (EEOC) handles discrimination investigations. Suffice to say, these claims can be very costly for employers, which is why it is so important that employers understand and follow the law.

In the final part of this series, we’ll review workplace protections afforded under the Family and Medical Leave Act (FMLA) and the Affordable Care Act (ACA).

About the Author

Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.