The Workweek - With a few exceptions, all employer obligations under the FLSA are measured on a workweek basis, so employers must understand how the FLSA defines “workweek.” A “workweek” for FLSA purposes is seven consecutive 24-hour days beginning when the employer chooses. Once the employer sets the beginning of a particular employee’s workweek, the workweek automatically ends 168 hours later and a new workweek begins. In determining if the Act’s minimum wage or overtime requirements have been met, each workweek must be viewed on an individual basis. For example, employers cannot use earnings in excess of the minimum wage in one workweek to offset minimum wage deficiencies in another workweek. Similarly, except in narrowly defined circumstances, overtime hours worked in any one workweek must be compensated at the appropriate premium rate, even if the employee works a reduced schedule in another workweek.
Compensatory Time-Off Plans - While private employers can set up a plan substituting compensatory time off in lieu of overtime payments for nonexempt employees, most employers will find it administratively impossible to maintain such a plan without violating the workweek concept. (Note: special rules apply to compensatory time-off plans offered by public employers). Given the administrative difficulties in setting up and maintaining a lawful compensatory time-off plan, it is strongly recommended that private employers avoid such plans.
Different Workweeks for Employees - The FLSA allows employers to establish different workweeks for each employee. Nevertheless, workweeks should be standardized for as many employees as possible to avoid potential employee relations, discrimination, and administrative problems. Employers should have a legitimate business reason for any variations in employee workweeks.
Employers should record the beginning of each employee’s FLSA workweek in their payroll records. A general notation is sufficient when all or most of the employees begin their workweeks at the same time. Employers should record variations to the general workweek in the individual employee’s payroll and personnel records.
Changing an Employee’s Workweek - Employers can change the beginning of an employee’s workweek but should intend any such change to be permanent. It is unlawful to vary the start of the workweek from week to week or month to month to avoid paying an overtime premium.
Hours Worked - Under the FLSA, employers (not employees) must maintain an accurate record of all hours worked each workweek by nonexempt employees, and must pay at least the minimum wage and appropriate overtime for all hours worked. Employers often fail to count all hours worked by employees as compensable working time. Any activity required by the employer and performed for the employer’s benefit is compensable working time. Hours worked in a workweek generally include all of the time the employee is required to be on the employer’s premises, on duty, or at a prescribed workplace.
Section 3(g) of the FLSA defines the term “employ” to include “to suffer or permit to work.” Under this definition, work performed voluntarily by an employee may be compensable working time even though not requested by the employer, if the employer knew or should have known the work was being performed. Generally, the employer has the obligation to ensure that no work is performed if it does not want it performed.
Meal Periods - Uncompensated meal periods can create problems under the FLSA. Bona fide meal periods are not “hours worked” within the meaning of the FLSA if the meal periods are at least 30 minutes long and the employee is completely relieved from all duties. Employees are not relieved of all duties if they are required to perform “inactive” duties such as monitoring phones or “watching the door.” Employers frequently violate the FLSA by failing to ensure that employees perform no duties (especially “inactive” duties) while on uncompensated meal breaks.
On-Call Time - Waiting time may constitute compensable hours worked. For example, hours spent by employees “on-call” will be compensable working time unless the employee is totally relieved of all duties during this period, and the employee is free to use the time for his/her own purposes. Employers often convert otherwise noncompensable on-call time to compensable hours worked by unduly restricting where the employee may spend this time or how quickly an employee must respond to a call, or by calling the employee back frequently with little free time between call-backs.
"Unauthorized" Overtime - Generally, if an employee works overtime, even unauthorized overtime, the employer must pay for the overtime. Employers may discipline employees who do not obtain authorization but should pay the employee for all overtime hours actually worked if the employer knew or should have known the employee was working overtime.
Meetings, Lectures, and Training Time - Time spent by employees at meetings, lectures, or training classes held by their employers must be counted as hours worked unless all four of the following criteria are met: (1) attendance is outside of the employee’s regular working hours; (2) attendance is voluntary; (3) the employee performs no productive work during attendance; and (4) the course, lecture or meeting is not directly related to the employee’s job. Few training classes conducted by private employers meet the fourth criteria.
Sleeping, Traveling, and Pre- and Post-Shift Activities - Whether time spent by employees sleeping, performing pre- and post-shift activities, or traveling constitutes hours worked must be examined on an individual basis. DOL regulations and court decisions specifically deal with these issues.