Clock by Earl
What hours does an employee need to be paid for?
Minimum wage must be paid to non-exempt employees for all hours worked. Hours worked include training time, on-call time, cleaning time, waiting time, or any other time when the employee must be either on the premises of the employer or involved in the performance of duties in connection with his or her employment or must remain on the premises until work is prepared or available.99 Hours worked do not include days on which the employee does not perform any work, such as paid holidays, vacation, sick leave, or other paid time off. Employees and employers may not agree to work “off the clock.”
Periods when the employee is completely relieved of duty and free to leave the premises for a definite period of time, and the period is long enough for the employee to use for the employee’s own purposes, are not hours worked.100 An employee is not completely relieved of duty unless he or she is definitely told ahead of time that he or she will not have to commence work until a specified hour has arrived and that he or she may leave the job until that time.
Special rules apply for certain occupations, such as bus and truck drivers, emergency personnel, personal care attendants or live-in companions. Employers should be aware of exceptions specific to their industry.
Employees who are required to remain on call on the employer’s premises or so close that they cannot use the time effectively for their own purposes are working while “on call.” Employees who are not required to remain on the employer’s premises but are merely required to carry a pager or leave word where they may be reached probably are not working while “on call.”101 The mere fact of being “on call” under these circumstances does not require pay. If an employee is working while “on call,” he or she must be paid for that time. Employers should review on-call restrictions with legal counsel to determine whether the restrictions on the employee’s time are significant enough to be considered working time.
SLEEPING TIME AS HOURS WORKED
If an employee is required to be on duty for 24 hours or more, bona fide meal periods and a bona fide regularly scheduled sleeping schedule of not more than eight hours may be excluded from hours worked upon agreement between the employer and employee if adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted sleeping period. If the employee sleeps more than eight hours, only eight hours will be excluded from hours worked. If a sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the employee cannot get a minimum of five hours of sleep as the result of interruptions, the entire period must be counted as hours worked.
If the employer does not have an agreement with the employee regarding exclusion of meal periods and sleeping periods, meal periods and up to eight hours of sleeping time will constitute hours worked.102 Minnesota law is more restrictive than federal law in this area, and special rules apply for various occupations.
Employers must permit employees who work for eight or more consecutive hours sufficient time to eat a meal, but they are not required to pay employees for this time.103 Meal periods of less than 20 minutes may not be deducted from hours worked, and meal periods may not be deducted where an employee is not entirely free from work responsibility, e.g., where an office employee is required to eat at his or her desk or a factory worker is required to be at his or her machine.104 If an employee prefers to skip the designated meal period and continue working instead, it is the employer’s decision whether to permit the employee to do so. An employer is not required to permit employees to accumulate break or meal time to alter their work schedule. However, the employee must be compensated for all hours worked.
If an employer serves the employee a meal and the employee accepts it, the employer receives credit toward the minimum wage for 60 percent of one hour ’s wage per meal at the adult minimum wage rate.105 The employer, however, may not require the employee to accept meals as a condition of employment. To qualify for this meal allowance, the meal must include one food from each of the following four groups: fruits or vegetables; cereals, bread or potatoes; eggs, meat or fish; and milk, tea or coffee. For breakfast meals, eggs, meat or fish do not need to be included if both cereal and bread are offered.
Generally, employers are not required by law to give breaks of a specific duration. However, employers must allow employees adequate time within each four consecutive hours of work to use the restroom.106 Such breaks are considered working time. An employer must provide reasonable unpaid break time for nursing mothers to express breast milk for their infant children. Employers must provide a lockable private facility, other than a toilet stall, for such purposes.107
Travel time from home to work is not considered hours worked for which an employee must be compensated.
Time spent traveling by an employee during his or her normal work day must be counted as hours worked, as must travel time on non-working days that falls within the hours the employee usually works. If an employee finishes his or her job at an off-site location and, instead of returning to the regular job site, returns home, that travel time would not be counted as hours worked. Travel time spent during a time of day other than the employee’s regular working hours as a passenger on an airplane, train, boat, bus or automobile to a place away from the employee’s home community will not be considered work time unless the employee is required to work while traveling.108
Federally-covered employers must pay non-exempt employees overtime at one and one half times their regular rate of pay for work performed in excess of 40 hours per week.109 State-covered employers must pay non-exempt employees overtime at one and one half times their regular rate for work performed in excess of 48 hours in a week.110 “Non-exempt” employees are those employees covered by state or federal wage and hour laws. “Exempt” employees, as defined in the following section, are not subject to these laws. Special exceptions may apply for health care employees and certain other limited occupations.111 There is no statutory requirement for overtime pay on weekends, holidays or after 8 hours. However, collective bargaining agreements or employer policies may permit such payment.
COMPENSATORY TIME OFF (COMP TIME)
“Comp time” (compensatory time off) generally means time off in lieu of time and a half pay for hours over 40 worked in a workweek, not a “pay period,” by a non-exempt employee. “Comp time” is not permitted for private employees, only public employees.
CREDITS: The content of this and any related posts has been copied or adopted from An Employer’s Guide to Employment Issues in Minnesota, provided by the Minnesota Department of Employment and Economic Development & Linquist & Vennum P.L.L.P., Tenth Edition, 2009. Copies are available without charge from the Minnesota Department of Employment and Economic Development, Small Business Assistance Office.
This post is also part of a series of posts on Minnesota wage and hour issues.
99. 29 C.F.R. § 785.14-.17 (2007); Minn. Rules § 5200.0120, subp. 1 & 2 (2007).
100 29 C.F.R. § 785.16(a) (2007); Minn. Rules § 5200.0120, subp. 3 (2007).
101 29 C.F.R. § 785.17 (2007); Minn. Rules § 5200.0120, subp. 2 (2007).
102 29 C.F.R. § 785.22 (2007); Minn. Rules § 5200.0121, subp. 2 (2007).
103 Minn. Stat. § 177.254 (2007).
104 29 C.F.R. § 785.19 (a) (2007); Minn. Rules § 5200.0120, subp. 4 (2007).
105 Minn. Rules § 5200.0060 (2007).
106 Minn. Stat. § 177.253, subd. 1 (2007).
107 Minn. Stat. § 181.939 (2007).
108 29 C.F.R. §§ 785.39, 785.41 (2007).
109 29 U.S.C. § 207 (2007).
110 Minn. Stat. § 177.25, subd. 1 (2007).
111 Minn. Stat. § 177.25, subd. 2, 3, 4 (2007).