Most people know they should be paid at least the minimum wage, plus overtime pay, by their employers. Since 1938, minimum wage and the 40-hour workweek have become standard, common-knowledge concepts under an employee’s right to fair pay in the American workplace. However, every year employees all over the U.S. are deprived of their right to earn the minimum wage and overtime pay for their work. How does this happen? In many cases, people are not paid correctly because they are not sure when their job activities are actually work that they should be paid for.
Common Examples of Illegal Unpaid Work
Consider these examples of typical work scenarios:
• Bob is a construction worker. Every day before heading to the job site, he is required to meet at his company’s yard to load up tools and supplies he will need to work that day. Once Bob arrives at the job site, his foreman records the time Bob and his other crew members begin working for the day. Bob’s time gathering tools and driving to and from the yard is unpaid work time.
• Janet is a sales representative working at a retail store. Once a week, Janet’s manager requires her and the other sales associates to come into the store an hour early to discuss new displays or sales goals for the week. After the meeting, Janet punches into the time clock and begins her daily shift. Her time at the sales meeting is unpaid work time.
• Nick is a telemarketer. Nick’s company has a policy which automatically deducts a half-hour from his pay each day to account for his lunch break. In order to keep up with his boss’ quotas, Nick and his fellow employees often eat lunch at their desks so they can continue to make calls. This working lunch time is unpaid work time.
• Mary is a waitress in a restaurant. Each night, Mary punches out, then wipes down the tables she was assigned for her shift. On weekends, Mary often stays late after punching out until her last customer leaves so she can clean her tables. Mary’s clean-up time is unpaid time.
• Chris is a customer service representative for a manufacturing company. Even though Chris’ company closes at 5 p.m. daily, Chris usually spends about an hour at home each night answering work emails in order to catch up on customer questions about their orders. Her evening computer time is unpaid work time.
• Karen is a factory worker. Each day when she arrives at work, she must put on safety glasses, an apron, cut-resistant gloves, and safety boots before her shift begins. After getting dressed, Karen punches in and heads to the production line to start her shift. Karen’s time spent suiting up in protective gear (called donning and doffing) is unpaid work time.
Are any of these employees entitled to be paid for these activities? In each example above, the answer is likely yes.1
Legal Definition of “Work” Can Include Many Indirect Job Tasks
While “work” is not defined in the Fair Labor Standards Act, at least one federal court has defined work as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.”2 While this definition requires careful examination of the facts of a particular workplace, it is possible that activities such as traveling between job sites, attending mandatory meetings outside of normal hours, working through unpaid lunches, and working from home after hours are activities employees should be paid for. While an employer may claim it does not have to pay for these types of work, federal and state laws may require otherwise.
If you perform any of the activities in the examples above without being paid, please call Hawks Quindel today at (414) 271-8650 to set up a free consultation about your potential claims for unpaid wages.
1 Determining whether the activities provided as examples in this post are compensable is dependent on a variety of factors, including but not limited to: the specific facts of the workplace, the state in which the workplace is located, and new developments in both state and federal laws. These examples are provided for illustrative purposes only and are not intended to convey legal advice from the author regarding the compensability of similar activities in any particular workplace.
2 Munsch v. Domtar Indus., Inc., 587 F.3d 857, 859 (7th Cir. 2009).
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