1. Hours Worked and Related Pay Obligations Thursday, February 13, 2014

2. Presented by: Brian Dixon Co-Chair, Wage and Hour Practice Group Littler Mendelson, P.C. BDixon@littler.com 415.677.3194

3. Please Note: Descriptions of these federal and state laws are summaries and should not be relied upon at face value without considering the text of the statutes and/or speaking with an attorney.

4. Agenda What is work time? – Limited general concepts, state variations, “cookbook” approach under each law What pay obligations flow from work time? – Meal and rest periods – Days of rest – Reporting pay, split shift premiums

5. What is “Work”? The FLSA does not include a definition of “work”

6. Continuous Work Day – Federal Law Employees must be paid for all hours within a workday, from the first principal activity to the last principal activity A “principal activity” includes any activity that is an integral and indispensable part of an employee's work In general, “work” includes all the time an employee must be on duty, on the employer’s premises, or at any other prescribed place of work

7. Work “Suffered or Permitted” All work “suffered or permitted” by the employer must be compensated, including: – Work requested or required by the employer – Work not requested, but permitted – Work the employer knows or has reason to believe is being performed – even if not expressly requested

8. Key Concepts Work is broadly interpreted to the employee’s benefit Employees must be paid from “whistle to whistle,” with limited exception Work includes any time the employee is required, requested, suffered or permitted to work It is the duty of management to see that work not required or requested is not performed

9. Analysis of Working Time: Book-Ending the Day What time did the employee perform the first principal work activity? Is the employee performing work remotely? – Is remote work being captured in timekeeping system? – Is travel time being captured? What time did the employee perform the last principal work activity? Is the employee working from home at night?

10. Is the Activity Work Time? Meal & Rest Breaks Waiting Time On-Call Time Training/Meeting Time Travel Time Pre- and Post-Shift Activities Sleep Time Grievances, Suggestion Systems and Charitable Activities

11. Meal & Rest Breaks A meal period may be unpaid if 30 minutes or longer and the employee is completely relieved of duties An employer may require an employee to remain at the worksite during a meal or rest break without making the meal period into work time under federal law A rest period of 20 minutes or less is compensable work time

12. On-Call Time On-call time is compensable if an employee is unable to use the time effectively for his/her own purposes – Required to stay on or close to the employer’s premises – Responds to calls frequently – Short required response time – Any other limitations on employee’s use of his or her time – Any practice which limits the burden of being on call On-call time is not work merely because the employee is required to carry a pager, cell phone or leave a telephone number where s/he can be reached

13. Waiting Time Employees must be paid for time spent “engaged to be waiting” Employees “waiting to be engaged” are not working

14. Training/Meeting Time Training/meeting time is compensable work hours unless all four of the following requirements are met: 1.Attendance is outside regular working hours 2.Attendance is voluntary 3.The training/meeting is not job related 4.The employee does not perform any productive work during the training/meeting

15. Compensable – Travel between job sites during the work day – Travel to another city for special one-day assignments (minus normal commute time) – Overnight travel during the employee’s normal work hours (on a work or non-work day) Not Compensable – Normal home-to-work commuting, unless employee begins work prior to commuting – Overnight travel, if outside the employee’s normal work hours (on a work or non-work day) Travel Time - FLSA

16. Travel Time Some states laws require all travel time to be paid except the normal commute Travel time can be paid at a different lower wage rate (e.g. at the minimum wage), if that rate applies to all travel

17. Travel in Company Vehicle - ECFA Home-to-work travel in a company vehicle, and any activities “incidental” to such travel is not work time where: – Use of vehicle is voluntary – No expense is incurred by employee in use of vehicle – Vehicle is of a type ordinarily used for commuting – Work sites are within normal commute distance of employer's office

18. Work: – Booting up and turning off the computer – Reading emails – Shift-change conversations – Donning/doffing Not work: – Commuting – Walking from the parking lot to the work station – Waiting to punch a time clock Pre- and Post-Shift Activities

19. “Donning and Doffing” Compensable: – If putting on and taking off clothing or protective gear on the employer’s premises is required by law, the employer, or the nature of the work – Waiting in line for uniform – Walking after obtaining the uniform to the place where employees don/doff and to the work station

20. “Donning and Doffing” Not Compensable: – If employees are allowed to don/doff clothing at home, but choose to change at work – If the aggregate time spent donning, walking, waiting and doffing is de minimis

21. Cleaning & Maintaining Uniforms What is a uniform? – Defined by state law – Usually includes any distinctive clothing that an employee would not wear on a non-work day – Uniform: a shirt with a company logo – Not a uniform: khaki pants with a blue shirt Employees may be working if required to clean or repair a uniform beyond normal washing and drying

22. Suggestion Systems, Resolving Grievances, Charitable Activities Time spent by an employee preparing suggestions, resolving grievances and participating in charitable activities need not be compensated if: – Participating in the activity is voluntary, and – Occurs outside normal working hours

23. Sleep Time Sleep time can be excluded from work time only if for employees on duty 24 hours, and the employee: – Agrees that up to 8 hours of sleep time will not be paid – Has adequate sleeping facilities – Is generally able to enjoy an uninterrupted night of sleep – Is paid for any interruption of sleep time – Is paid for the entire night if the employee gets less than five hours of sleep – Up to three, one-hour off-duty meal periods also may be unpaid

24. “Off-the-Clock” Red Flags Recorded time is almost always a nice round number (e.g., 9:00 a.m., 5:30 pm) Recorded time is almost always the same as the scheduled shift Time records show a significant number of missed punches, adjustments to time, or other anomalous entries Time punches/entries do not match hours worked shown on payroll records Employees observed in the workplace before clocking in, during lunch, or after clocking out

25. “Rounding” Time Rounding increment does not exceed quarter hour Rounding operates to the benefit and burden of the employee and the employer – Schedule corresponds with the rounding increment – No employer practice undoes rounding – Round meal periods?

26. “De minimis time” De minimis amounts of time need not be recorded or paid Time may be de minimis based on: – Amount of time on any single occasion – Frequency of occurrence – Administrative difficulty in recording the time – Total amount of time at issue

27. Meal & Rest Breaks State Law About 25 states require meal breaks – States with meal break requirements usually require a 30-minute break after 5 or 6 consecutive hours of work – Some states require that employees be free to leave the worksite Less then 10 states require rest breaks – States with rest break requirements usually require a 10-minute break for each 4 hours of work

28. California Meal Periods One 30-minute meal period for every five hours of work, unless – Six hours of work will complete the employee's work for the day and the employee waives the meal period – Variations by wage order for some initial meal periods and second meal periods An on-duty meal period can be used only where: – The nature of the work truly prevents the employee from being relieved of all duties – The employee agrees in writing to work through the meal period The meal period is counted and paid as work time

29. California Rest Periods

30. Reporting Pay Some states require employers to pay an employee for a minimum number of hours if the employee reports to work when no work is available – Paid at the employee’s regular rate – Pay the lesser of a minimum number of hours or the scheduled shift – Requirements vary by state and, within states, can vary by industry

31. Reporting Pay California – 2 to 4 hours Connecticut – 2 or 4 hours in some industries Washington, D.C. – 4 hours Massachusetts – 3 hours New Hampshire – 2 hours New Jersey – 1 hour New York – 1 to 8 hours, depending on industry, shifts Oregon – 1 hour to minors only Rhode Island – 3 hours

32. Split-Shift Pay Employers may be required to provide extra pay for employees who work a split shift in: – California – New York – Washington D.C. Split-shift scheduling is prohibited in Hawaii California split-shift premium: – ((Hours Worked + 1) * MW) – Wages Earned New York split-shift premium

33. Split-Shift Pay Only New York defines a split shift: – 10 hour non-work period between shifts California, New York and D.C. all require an additional 1 hour of pay at minimum wage, but this requirement is met if: – Wages Earned > (Hours Worked + 1) * MW – If test not met, pay the difference

34. Day of Rest Laws Half a dozen states have day-of-rest laws Many are related to recognizing a Sabbath and may have Constitutional issues California – an employer must provide one day’s rest out of every seven

35. Questions and Answers

36. Thursday, February 13, 2014 Brian Dixon Littler, San Francisco