We have a few hourly workers who do a few work tasks at home off the clock, like answering a quick email. Do they need to be paid for this?
Quick Answer
The time must be paid unless it qualifies as de minimis, which means that it consists of only a few seconds or minutes and cannot as a practical matter be accurately reported for payroll purposes.
Legal Perspective
Dykema
Ann Arbor, Michigan
You have to be very careful when it comes to tracking hourly employees’ work activities, says employment law attorney Robert Boonin of the firm Dykema.
According to the FLSA, employees must be paid for all activities necessary for performing their jobs. However, there is a de minimis exception. If the intervals are small, scattered and difficult to track, employers don’t need to worry about those. But if these employees frequently respond to emails off the clock, that time needs to be paid, since they are technically working.
Relevant Case Law
Aquilar v. Management & Training Corp.
Reich v. Montfort, Inc.
HR Insight
CertiK
New York, New York
I would ensure that all nonexempt workers are paid if they work off the clock. Companies should follow the law, says Erin ImHof, an HR Leader in New York.
If an employer doesn’t want employees to work after-hours, they should notify the employees about the policies and procedures of the organization and ensure they are documented. Nonexempt employees should obtain manager approval before working after hours. If they continue to work off the clock, they should be paid but can be written up if it occurs without permission.
Westside Family Healthcare
Wilmington, Delaware
Always be careful about allowing hourly/nonexempt employees to answer emails or texts when “off the clock,” explains Aggie Flores, HR Director.
Generally speaking, if nonexempt employees do any work for the company, regardless of location, they must be paid for that time. Therefore, they would need to be paid for the time they answer an email or text. I would suggest limiting off-hours interactions with hourly employees unless absolutely necessary.
Alcoa Community FCU
Benton, Arkansas
The first circumstance is to consider whether the employee is exempt or nonexempt, explains HR Specialist Andrea Rose.
Hourly workers are commonly nonexempt status, unlike salaried workers, and are expected to be compensated for time worked according to the established pay schedule. Under the FLSA, all nonexempt workers must be paid for all hours worked, even those off the clock. Employment agreements should be clear and concise with specific examples of what is considered “off-the-clock” work so as not to mistakenly expect an employee to work without pay.
The Cost of Noncompliance
Nike pays $8.25M to settle state wage claims
Who was involved: Nike Retail Services and a group of California Nike retail employees.
What happened: A group of Nike retail workers sued under California wage law, alleging that they should have been paid for time spent during exit inspections that were conducted off the clock and every time employees left the store. A lower court ruled for Nike, finding that the claims were barred by the de minimis doctrine. The state’s highest court then ruled that the federal de minimis doctrine does not apply to wage claims raised pursuant to California law.
Result: The parties then agreed to settle the case, with Nike agreeing to a total settlement amount of $8.25 million, which included $2.75 million in attorneys’ fees.
Info: Rodriguez v. Nike Retail Servs., No. 14-cv-01508-BLF (N.D. Cal. 1/27/22).
Alleged wage-and-hour violations: Employer pays $1.75M to settle class action
Who was involved: Ulta, a Delaware corporation, and a class of Ulta employees.
What happened: Ulta employees filed four separate class action lawsuits to allege unpaid overtime, unpaid minimum wages, a lack of proper meal and rest periods, and other allegations under California law. Among other things, they alleged that Ulta required them to submit to security checks that were sometimes conducted off the clock and were unpaid.
Result: Ulta agreed to pay $1.75 million to settle the suits, which was anticipated to produce an average payment of $44.38 to each individual class member.
Info:Tellez, et al. v. Ulta Salon, Cosmetics & Fragrance Inc., No. 18-cv-2480 (S.D. Cal. Feb. 10, 2020).
Wage dispute: Retailer pays $2.9M to settle proposed class action
Who was involved: Dick’s Sporting Goods, a sporting goods retailer, and a class of California Dick’s employees.
What happened: A Dick’s employee filed a proposed class action alleging among other things that they should be paid for time spent undergoing security checks in connection with their employment.
Result: Dick’s agreed to pay $2.9 million to settle the suit, producing an average payment to class members of approximately $155.
Info: Greer, et al. v. Dick’s Sporting Goods, Inc., No. 15-cv-01063 (E.D. Cal. 3/26/19).
Key Takeaways
- Under the Fair Labor Standards Act, any part of fixed or regular working time must be counted as hours worked for payroll purposes.
- Insubstantial or insignificant periods of time beyond regular working hours need not be counted as payable time, but only if those periods of time cannot as a practical matter be precisely recorded.
- The rule excusing payment for de minimis periods of time applies only to time periods that last for a few seconds or minutes.
- Relevant factors to consider in determining whether a particular period of time is de minimis include the practical difficulty associated with recording the time, the total amount of time involved, and whether the work at issue is performed on a regular basis.
- Time worked, no matter how short, must be paid if it is practically ascertainable or if it is part of an employee’s fixed or regular working time.
- Some states do not apply the de minimis doctrine to claims filed under their state wage laws.
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