Jill Stoppard

 If your company utilizes non-exempt temporary workers, then you need to take extra care that you’re paying them for each and every hour they work. It seems obvious, but these days it’s not as simple as just paying workers for the amount of time they spend on the company’s premises. If you work with a staffing company or professional employer organization to employ temporary workers, it’s a good idea to look at their wage and hour practices in conjunction with yours, and check that you have everything covered – otherwise you could be liable for mistakes if you’re found to be a co-employer of that temporary worker.

Federal Law states hours worked as: “All time during which an employee is required to be on duty or to be on the employer’s premises or at a prescribed workstation” which sounds easy enough, however, it goes onto say that hours worked also includes “All time during which an employee is suffered or permitted to work” which is a little muddier when it comes to defining what constitutes hours worked from the employer’s perspective. To complicate matters further, each state has its own variation to this law. California’s law states hours worked as: “All the time during which an employee is subject to the control of an employer. Includes all the time the employee is suffered or permitted to work, whether or not required to do so.”

Here are some common situations where companies often fall into wage and hour law traps, plus best practices to put into place so that you can try and avoid them:

Travel time

As you might expect, an employee’s regular commute from home to work does not count as hours worked, and employers do not need to compensate their workers for their journey. However, if you expect an employee to travel to a special location to work (such as a client’s office or other job site across town) you must compensate them for the additional journey minus their normal commute time. Naturally, if you expect your employee to travel to another place for work at any time within the working day, you must also pay them for that time.

Travel Away From Home

According to federal law, travel is compensable “when it cuts across the employee’s workday” on regular working days and corresponding non-working days. In California, all travel should be paid for, except for breaks provided to eat a meal, sleep or engage in personal pursuits (i.e. sightseeing, watching TV in the hotel etc). Also, the employee’s regular commute time may be subtracted (i.e. on a 4 hour flight to Chicago, the employer may subtract the employee’s 40 minute commute to the airport if it’s the same as their regular commute to the office).

Training/Seminar Time

If training is mandatory, and the training course is directly related to the job, you should pay the worker for attending. However, if attendance is voluntary, the course is not directly related to the job and no productive work is performed during the training, then you are not obligated to pay the worker.

Waiting /Standby Time

Determining the kind of standby time that counts as hours worked can be tricky. It mostly depends on how much the employer controls the worker’s time while they are waiting to work. If a worker is waiting to be called into work, but is unrestricted to use his or her time for his or her own purposes, this does not count as hours worked. However, if there is a geographic restriction of the employee’s movements, a required response time or any kind of restriction on the employee’s personal activities than their waiting time should be counted as hours worked. Whether standby time can be counted as hours worked may also be influenced by the type of work being performed – it’s best to go over the specifics with your legal counsel.

E-Mail and Cell Phone Activity Outside of Work Hours

E-mail and cell phone use outside of work is becoming a wage and hour minefield for employers, as it’s so widespread and hard to clamp down. Essentially, non-exempt workers who check and respond to work e-mails outside of work hours on Smartphones and other devices should be paid for that time – even if they do so at their own behest. It is best to restrict Smartphone use by non-exempt employees, and ask employees to report the work they do outside of hours. In some cases, restricting use of company e-mail after work might be a good idea. If you expect your non-exempt workers to check and respond to e-mails after hours, you must get them to count it as hours worked and you must pay them for it.

Tips To Stay On the Right Side of Wage and Hour Law

Make sure you keep a record of workers’ clocking in and out times, including meal breaks
Ensure employees are paid for all compensable waiting time
Introduce a policy prohibiting unauthorized overtime for non-exempt workers
Ensure that workers sign an acknowledgement that the time worked on their timecards is accurate
Provide workers with information on who to contact if they need to make a correction to their amount of hours worked
Restrict Smartphone use by non-exempt employees
Never request employees to work off the clock (and inform supervisors of this)
Introduce policy requiring workers to report all after hours work
Think about restricting e-mail access after hours

If you have any questions relating to wage and hour law and your temporary workforce, please feel free to e-mail us at info@emergent.com or call us on 855 250 5000.

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