One interesting omission from the Fair Labor Standards Act (FLSA) is its failure to define “work” and what constitutes time for which an employee is entitled to compensation. As a result, the subject of what is and is not compensable time has been litigated related to a number of employee activities.
The General Rule
Courts have defined “work” for FLSA purposes to mean “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.” Additionally, the same definition appears in the U.S. Department of Labor’s regulations (29 C.F.R. §§ 785.7 and 785.15).
The De Minimis Doctrine
The U.S. Supreme Court established this doctrine in 1946 which ruled employees are not entitled to compensation when they spend an insubstantial or de minimis amount of time on an otherwise compensable activity. When examining whether an activity fits the de minimis doctrine, courts will look at the following factors:
- the amount of daily time spent on the additional work,
- the administrative difficulty in recording the time,
- the size of the aggregate claim,, and
- the regularity of the work.
In practical terms, 10 minutes of activity is likely the most at which a court will rule the activity is de minimis.
Meal Periods
Department of Labor regulations state “bona fide meal periods” where the employee is “completely relieved of duty” are not compensable (29 C.F.R. § 785.19). However, certain Federal Circuit Courts have developed a slightly different test for meal periods. Specifically for Texas, the Fifth Circuit has adopted a test of “predominant benefits.” The Fifth Circuit court stated, “The critical question (which is a question of fact, and which the employer carries the burden of proof), is whether the meal period is used predominantly or primarily for the benefit of the employee.” See Bernard v. IBP, Inc. of Neb., 154 F.3d 259, 264-65 (5th Cir. 1998).
Using the applicable regulations and case law as a basis, employers should ensure employees spend their meal time for their own benefit and not continuing to perform any work activities for the employer. The meal break should be sufficiently long to create a sense of separation of work duties. A 30 minute meal period is enough, but in no event should the employer allow meal breaks of less than 20 minutes. Additionally, the employer should allow an area for meal breaks which is physically separate from the employee’s work area – i.e. a break room or kitchen.
On-Call Time
An employee who is required to remain on call on the employer’s premises is working while “on call.” An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee’s freedom could require this time to be compensated.
Travel Time
The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.
Home to Work Travel
An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.
Home to Work on a Special One Day Assignment in Another City
An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.
Travel That is All in a Day’s Work
Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.
Travel Away from Home Community
Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.
Training Classes
Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.
Vacation or Sick Time
The FLSA does NOT require an employer to pay for an employee’s time away from work for vacation, holiday, illness, or for any other reason. Courts have ruled that “granting of leaves of absence with or without pay is a matter of agreement between the employer and the employee, and the time need not be counted as working time.”
Civic Duties
The law does not require an employer to pay an employee for time lost due to jury service. However, an employer must allow an employee time off WITH pay to vote, if the polls are not open for voting for two hours outside of the employee’s working hours. In addition, an employer must allow an employee time off, with or without pay, to attend his/her political party’s precinct convention and any county, district, or state convention to which the employee is a delegate.