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Fair Labor Standards Act Primer | Part 1

February 26, 2019
 
(First of two parts)
 
Most companies have a good sense of how to handle the “white-collar” regulations that classify employees as exempt and nonexempt. But there are many lesser known provisions of the Fair Labor Standard Act (FLSA) that are sometimes overlooked or forgotten until too late.
 
AIM has assembled a two-part article on these “smaller” provisions to make sure companies do not get blindsided by a complaint. Much of the information for these two articles is drawn from the FLSA regulation 785.10 through 785.45 and is available here.
 
As with so many aspects of the FLSA, the unique facts of each situation matter, and it is up to the employer to determine what those facts are in each particular case. In most cases, Massachusetts wage- and-hour law tracks federal law. Where it does not, it is noted. 
 
What is work? 
 
The law makes it clear that the employer controls access to, and performance of, work by employees. Work not requested but “suffered or permitted” is work time. For example, an employee may voluntarily continue to work beyond the end of his/her shift. The reason is immaterial. The law presumes that the employer knows or has reason to believe that the employee is continuing to work, the time is working time and the employee must be paid. 
 
Where is the work performed?
 
The FLSA applies to work performed away from the company or even at home. If the employer knows or has reason to believe that the work is being performed, it counts as hours worked.
 
Engaged to wait or waiting to be engaged? 
 
This section can be summed up in the following question. Is waiting is an integral part of the job?
According to court cases that have interpreted this rule, such questions “must be determined in accordance with common sense and the general concept of work or employment.” 
 
An employee who reads a book while waiting for work to be assigned, an office worker who works a crossword puzzle while awaiting assignments, a firefighter who plays checkers while waiting for alarms and a factory worker who talks to co-workers while waiting for machinery to be repaired are all engaged to wait even while they are idle. 
 
This applies to employees who work off-site too. For example, an employee is working even while waiting for the customer to get the job site ready. The time is worktime even though the employee may leave the premises or the job site during such periods of inactivity because these periods are unpredictable and usually of short duration. 
 
On the other hand, when an employee is completely relieved from duty for periods of time long enough for the employee to use the time for his/her own purposes, it is not work time. For this to apply, the employee must be told in advance that he may leave the job and will not have to commence work until a specified hour.  
 
On-call time
 
An employee required to remain “on call” on the employer's premises or so close thereto that the employee may not use the time effectively for his/her own purposes is working while on call. An employee not required to remain on the employer's premises but merely required to leave word at home or with company officials where s/he may be reached is not working while on call. 
 
Massachusetts - Reporting pay
 
When an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage. It does not apply to charitable organizations under the Internal Revenue Code.
 
Rest and meal periods
 
Rest periods (e.g. coffee breaks) of five to 20 minutes must be counted as hours worked. 
 
Meal break 
 
Bona fide meal periods are not work time. Bona fide meal periods are not rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. 
 
On the other hand, the employee is not on meal break if required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at her machine is working while eating and must be paid. 
 
It is not necessary that an employee be permitted to leave the premises as long as the employee is otherwise completely freed from duties during the meal period.
 
Massachusetts law requires a 30-minute meal break if the employee is scheduled to work more than sixhours. 
 
Lectures, meetings and training programs
 
Attendance at lectures, meetings, training programs and similar activities need not be counted as work time if the following four criteria are met:
  • Attendance is outside of the employee's regular working hours;
  • Attendance is voluntary;
  • The course, lecture, or meeting is not directly related to the employee's job; and
  • The employee does not perform any productive work during such attendance.
Training directly related to employee's job
 
Training is directly related to the employee's job if it is designed to make the employee handle the job more effectively as opposed to training for another job, or a new or additional skill. Time spent in such a course given by the employer or under its auspices is hours worked. Time the employee spends voluntarily in taking a non-job-related course outside of regular working hours need not be counted as work time.
 
Apprenticeship training
 
Time spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if the following criteria are met:
  • The apprentice is employed under a written apprenticeship agreement or program which substantially meets the fundamental standards of the Bureau of Apprenticeship and Training of the U.S. Department of Labor; and
  • Such time does not involve productive work or performance of the apprentice's regular duties. 
If the above criteria are met, the time spent in such related supplemental training shall not be counted as hours worked unless the written apprenticeship agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that such time is hours worked.
 
Please see the second article for more little-known parts of the FLSA. 
 
 
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