Written by attorney Todd Christopher Werts

What Time Counts as "work" for Pay and Overtime Purposes under the Fair Labor Standards Act (FLSA)?

A common misconception is that an employee can "volunteer" to work extra without pay for his or her regular employer, or that it is the "employee's fault" that he or she was not paid for all the time spent working. Under the federal Fair Labor Standards Act (FLSA), the burden is clearly on the employer to keep track of the actual time that an employee spends working.

The FLSA uses a “suffer or permit" standard for determining when a worker is “employed." See 29 U.S.C. § 203(g). That is, if the employer knows, or has reason to know, that an individual is performing tasks for the benefit of the employer, then that time is considered work. So if the employer suffers or permits an employee to confer a benefit on the employer, then the employer is liable to pay for that time. This broad definition of compensable time prevents an employer from strong-arming an employee into "volunteering" to work for free.

After the FLSA was enacted, Congress also passed the Portal-to-Portal Act which removed certain “time" from that time that would be considered compensable. See 29 U.S.C. § 251, et seq. Specifically, time spent performing preliminary and postliminary tasks is excluded. See 29 U.S.C. § 254. However, the Supreme Court has made clear that task that are integral and indispensible to the work must be included. See IBP, Inc. v. Alvarez, 546 U.S. 21, 30 (2005). Additionally, all time must be counted from the performance of the first to the last compensable tasks. See Alvarez, 546 U.S. at 28-29. Accordingly, an employer can be found liable if it does not account for all such time spent working.

This issue is what is a preliminary task that is carved out from the workday and what is an integral and indispensible task. The test that has evolved asks whether or not the task being done is necessary to do the job. A common example arises in the context of a call center or other office environment.

The act of turning on a computer is necessary for most jobs in an office. In some offices, old equipment and slow network connections can mean that something as simple as turning on a computer actually takes 5-15 minutes to complete. Because the computer is necessary for the office or call center worker to complete the job, that time should be "counted." An employer is not allowed, under the FLSA to dictate that pay starts at a specific time (e.g., 8:00 a.m.) but require the employee to come in early to turn on the computer and log into computer programs prior the start time.

Some employers track what is called "schedule adherence" or just "adherence" and will count an employee as being "out of adherence" if the employee is not ready to work at the very beginning of the paid shift -- even though it may take more than 5 or 10 minutes for the employee to get his or her equipment ready. The employer can require the employee to start working "early," but the time must be compensated for. Unfortunately, many employers do not build this variable into their timekeeping system and this is a violation that we see over and over again.

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