Workzone: Hourly total should include small tasks, too

(Pittsburgh Post Gazette) Brushing teeth or pressing a suit doesn’t count as the start of the workday for most people. But for many, the job still starts well before punching in for the day — and experts say those employees should make sure they’re being paid in full.

Whether a worker is securing a protective suit in a steel mill or checking emails before hitting the office, those actions — if required by an employer — could add to an employee’s hourly total under the Fair Labor Standards Act.

Enacted in 1938, the act defines employment loosely but the Supreme Court has ruled that work hours include “physical or mental exertion that is controlled or required by the employer.” According to that definition, time spent waiting to complete a task for the employer’s benefit, time spent working off-site for employers and time spent putting on or securing certain equipment for work could qualify.

Joseph Chivers, an employment attorney who founded the Downtown-based law firm Employment Rights Group, said a more refined definition of work hasn’t prevented years of misinterpretation of the law by employers and employees alike.

“A lot of employees really don’t understand [the law], and some employers are also clueless,” Mr. Chivers said. “They figure the only time they need to pay for is the time an employee punches in or punches out, and that’s not always the case.”

Varying state laws add to the confusion surrounding what are considered paid actions, but many court cases that arise from the law focus on an employee’s intent, according to an article by Rebecca Bentz, associate editor for Neenah, Wisc.-based safety and regulatory consulting firm J.J. Keller and Associates.

The article noted that nurses whose jobs require them to change into antimicrobial scrubs when arriving at work would be compensated for their time, whereas a nurse who could wear scrubs from home wouldn’t be paid for the clothing change. Time spent putting on personal protective equipment such as full-body safety suits or footwear can qualify as paid work but the law allows employers to ignore that time if the employee is doing a minor task such as putting on a hard hat or safety glasses.

Once a paid work action or “principal activity” takes place, other actions including walking and waiting are considered work, too. Mr. Chivers said nurses and other shift workers should be paid for duties such as updates to incoming shift workers or chemical showers that take place after the shift.

Principal activities are described as “integral and indispensable” to an employee’s job, according to the U.S Department of Labor’s Wage and Hour Division. Ms. Bentz’s article uses the example of a nurse who puts on antimicrobial scrubs to illustrate when the law would apply.

“Consider the earlier example of the nurse who must change into scrubs at the start of the workday. The time the nurse takes to walk from the locker room to the nurse’s desk or a patient’s room would be compensable, as changing into scrubs was the principal activity that started this person’s workday,” reads the article.

Still, even actions that would be difficult to interpret as anything other than work have come into question by employers, Mr. Chivers said.

He noted a current case he is working where a company requires its employees to log in to computers or smartphones before they leave their homes, but the company does not mark the employees’ hours until they arrive at the work site.

“The work day starts when that first activity starts,” he said.

Although some disputes involve only a few extra minutes, Mr. Chivers pointed out that cases involving a few minutes a day for several years could add up to millions if a company is found in violation of the act with numerous employees.

He said it’s often in an employer’s best interest to pay for the time before the matter gets to court.

“If people are working evenings, weekends and holidays, that adds up to a lot of time,” he said.