The answer to our September 23 Quick Quiz is, "None of it".

The relevant question under the federal Fair Labor Standards Act gets down to whether Ellen was "engaged to wait" (which is compensable worktime) or was "waiting to be engaged" (which is not).  There is not always an obvious answer to whether this kind of time is or is not compensable work under the FLSA.  As the U.S. Labor Department puts it, "Whether waiting time is time worked under the [FLSA] depends upon [the] particular circumstances."  29 C.F.R. § 785.14.

The Labor Department says that an employee is often "engaged to wait" even during periods of inactivity when he or she can leave the premises, because these periods of time are typically unpredictable and of short duration and do not permit the person to use the time effectively for his or her own purposes.  According to the Labor Department, in these situations, the waiting periods are an integral part of the job so as to be compensable worktime.  See, e.g., 29 C.F.R. § 785.15.

On the other hand, the Labor Department has also said that an employee's waiting time might not be hours worked in situations in which the employee:

◊   Is completely relieved of all duties and responsibilities;

◊   Is told in advance that he or she is permitted to leave the job;

◊   Is told in advance that work will not resume until a specified time; and

◊   Has a long-enough time to use the period effectively for his or her own purposes.

See, e.g., 29 C.F.R. § 785.16.(a).  Once again, though, whether the amount of time involved is of a sufficient length "depends upon all the facts and circumstances .  .  .."  Id.

In our hypothetical scenario, the best answer is that Ellen is "waiting to be engaged" between 8:45 p.m. Sunday and 7 a.m. Monday.  She has no duties or responsibilities during that period; she performs no work during that time; she knows she is not required to be at the booth until 7 a.m. on Monday; and clearly the period is long enough for her to use it for her own, personal purposes.  The fact that she is out-of-town is not enough in itself to cause that period of time to count as FLSA "hours worked".

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Ellen is a non-exempt employee who works in Bigtown for The Acme Corporation.  She is assigned to hand-out brochures at TAC's booth at a tradeshow at a hotel in Salestown on Monday.  She will stay in the same hotel where the show will be held.  Her instructions are that she has to be at the booth location beginning at 7 a.m. on Monday, when she will help set up the booth.

She arrives at the Salestown hotel on Sunday night at 8:45 p.m.  She immediately goes to dinner until 10:15 p.m.  She then returns to her hotel room, reads a novel for a while, and goes to sleep.

She wakes up at 6 a.m., goes through her normal "get ready" routine, eats a quick breakfast downstairs, and reports to the booth location at exactly 7 a.m.

Under the federal Fair Labor Standards Act, how much of Ellen's time between 8:45 p.m. Sunday and 7 a.m. Monday is worktime?

Please use the poll buttons to the right to register your answer.

Our earlier post about the U.S. Labor Department's position on unauthorized extensions of rest breaks has generated additional comments and questions.   We have responded to one comment at length beneath the post itself.

Another reader took the Labor Department's interpretation to mean that, if an employee impermissibly extends his or her rest break, then the whole rest break could be treated as non-compensable time under the federal Fair Labor Standards Act.  In that reader's view, for example, if an employee stretches a ten-minute rest break to 20 minutes, then the full 20-minute period could be excluded from worktime, rather than only the additional ten minutes.

The Labor Department has said that this is not the case.  In Opinion Letter of Wage-Hour Acting Administrator FLSA2001-16 (May 19, 2001), an employer asked the U.S. Wage and Hour Division whether an employee's unauthorized extension of a rest break under the conditions in Section 31a01(c), Field Operations Handbook (U.S. Labor Department, December 15, 2000), allowed the exclusion of the entire rest break from compensable time.  According to the Acting Administrator, "[o]nly the length of the unauthorized extension of an authorized break will not be considered hours worked when the three conditions are met, not the entire break."  In our illustration, then, the Labor Department would say that only the additional ten minutes could be treated as non-compensable time.

It also appears that some readers were not distinguishing among different kinds of breaks.  For purposes of what is and is not FLSA worktime under Labor Department interpretations, it can be useful to view scheduled breaks as falling into essentially three categories:

◊   Bona fide meal breaks, which are typically noncompensable time (29 C.F.R. § 785.19);

◊   "Short" rest breaks of "about 20 minutes" or less, which the Labor Department says are typically compensable time (29 C.F.R. § 785.18); and

◊   Break periods which are neither meal breaks nor "short" rest breaks, which might or might not be compensable time  (Section 31a01(b), Field Operations Handbook (U.S. Labor Department, December 15, 2000), link to reproduction below).

Employers should evaluate these categories differently in deciding whether and to what extent to treat them as being compensable hours worked under the FLSA.

And once again, employers must also be aware of and comply with whatever are the applicable break obligations of a state or another jurisdiction.

FOH 31a01b 12 15 00.pdf (34.71 kb)

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Our July 5 post prompted a question about whether an established meal period of less than 30 minutes must be considered worktime under the federal Fair Labor Standards Act.  The answer is, "Not necessarily".

U.S. Labor Department interpretations state that bona fide meal periods during which employees are completely relieved from duty in order to eat regular meals are not FLSA worktime.  See 29 C.F.R. § 785.19(a).  This provision also says that "ordinarily" 30 minutes or more is long enough for such a period.  This has led many people (sometimes including even U.S. Wage and Hour Division officials) to insist that, if an employer maintains a meal period of less than 30 minutes, the mealtime must be considered hours worked under the FLSA.

But the Labor Department's own interpretation recognizes that a shorter timeframe can be long enough "under special conditions."  Among the special conditions the Labor Department looks for are these:

•   Any work-related interruptions of the meal period are sporadic and minimal;

•   Employees have enough time to eat a regular meal under the circumstances;

•   The period is not just a break for snacks or coffee but instead allows the employee to eat a full meal, comes at a time when meals are normally consumed, and occurs with a frequency that is customary for regular meals;

•   The employer and employees have agreed that a period of less than 30 minutes is sufficient to eat a regular meal; and

•   Applicable state or local laws do not require a longer meal period than the one established.

Section 31b23, Field Operations Handbook (U.S. Labor Department, December 15, 2000).

The Labor Department reviews these factors on a case-by-case basis, taking into account the particular context involved.  U.S. Wage and Hour Investigators are instructed to give "special scrutiny" to meal periods of less than 20 minutes.

These principles have to do with whether established mealtimes of under 30 minutes are bona fide, non-compensable ones.  Work-related interruptions of established meal periods are evaluated differently.

Finally, remember that state or local laws might require a meal period of at least 30 minutes or some other length and might impose other meal-related obligations.  The FLSA does not relieve an employer from its responsibilities under any such laws.

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An increasing number of federal Fair Labor Standards Act lawsuits and U.S. Labor Department investigations include claims based upon the employer's automatically deducting meal periods from non-exempt employees' recorded worktimes.  Typically, the employees did not clock out-and-in to reflect the mealtime they took.  Instead, the employers systematically subtracted the full, scheduled meal period from each employee's total daily hours on the assumption that the person took an entire, uninterrupted meal break each workday.  An employee who worked during a meal period could avoid the deduction by using an exception feature of the timekeeping system, but the usual allegation is that employees did so inconsistently or infrequently, if ever.

Generally speaking, the FLSA does not require that employees be compensated for duty-free meal periods.  However, to the extent that automatic time deductions deprive an employee of FLSA-required wages for work during a meal period, a violation often occurs.  For instance, this frequently happens when the "standard" deduction is made for a day when the employee takes no meal break or takes only a shortened one, or where the meal period is shot-through with work-related interruptions.

A timekeeping-by-exception approach to meal periods is not unlawful under the FLSA if it results in an accurate record of non-exempt employees' hours worked.  See, e.g., Opinion Letter of Office of Enforcement Policy FLSA2007-1NA (May 14, 2007).  However, experience suggests that this is not what occurs in the real world.  An unusual set of circumstances might permit such a claim to be defended successfully, but even then the "win" is likely to be so expensive and disruptive that it will not feel much like a victory.

A safer approach is to instruct employees clearly that:

•   They are to clock out-and-in for the time taken for a meal period;

•   They are not to work during mealtime unless it is unavoidable; but

•   They will be compensated for and must therefore accurately record any time so worked.

Of course, even if employees are told these things, in the end what matters is what actually happens.  For example, there might be situations in which work-related interruptions of a meal period should lead to considering the entire period to be compensable worktime.

Meal periods might also be regulated by the laws of other jurisdictions.  In addition to considering FLSA issues, it is also important to know whether and how those laws might affect timekeeping and pay where meals are concerned.

UPDATE 08/10/10:  As recent news reports demonstrate, this is an increasingly frequent subject of claims made in disputes with health-care institutions.

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