To pay or not to pay?Victoria L. Donati, Jason C. Kim
According to the Fair Labor Standards Act (FLSA), employers must
keep track of and pay employees for all time worked. But what
exactly counts as time worked? This question is somewhat loaded,
requiring employers to work through a myriad of federal and state
laws and regulations, as well as a number of fact-specific
exceptions. For instance, are employees entitled to payment for
engaging in passive activities, such as participating in meetings
or training courses, traveling for work or changing clothes?
We will address some issues these questions typically raise. But
the guidance we provide is based on fairly fact-specific
regulations and limited to federal law. It is important you consult
legal counsel to fully understand the regulations and ensure no
applicable state or local laws mandate a different outcome. It also
is important to note these rules apply only to nonexempt employees
(employees who are entitled to overtime compensation pursuant to
applicable law).
Unauthorized time
According to FLSA, time worked includes not just time an
employee is asked or required to work but also time the employee is
"suffered" or "permitted" to work. For example, an employee may
voluntarily continue to work at the end of his shift or scheduled
workday with or without authorization. He may want to finish a job
or save time and effort the following day. The reason for the extra
time is immaterial, and it does not matter whether the time was
authorized. If the employer knew or had reason to know of the extra
time (whether by seeing or hearing of the employee performing the
work, seeing the product of the work, receiving the time reported
on a time sheet or time clock, or other means), it is considered
time worked, and the employee must be paid at his regular or, as
applicable,...
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