What Must You Provide for Your Employees?, Part II
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What Must You Provide for Your Employees?, Part II

This is part two of a three-part series addressing some of the most commonly asked questions concerning provisions you, as a business owner must provide for your employees.

By Johnny Duncan

Businesses in today’s market must improvise and adapt to in order to succeed. Worrying about compliance to governmental standards should not have to take up most of your day. Breaking the laws down to the most common sense terms can make a difference in interpreting and applying these regulations. The following questions and answers is an attempt to do just that:

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  • How often do employers have to pay their employees?

    The FLSA (The Fair Labor Standards Act) does not regulate the frequency of employee compensation and therefore does not require employers to pay their employees, whether exempt or non-exempt, at any specific intervals. However, pursuant to most state's laws, every employer must typically pay all wages due to its employees on regular paydays designated in advance by the employer. Additionally, many state laws provide that employers must pay wages according to a certain schedule.

    For example, according to Pennsylvania law, all wages, other than fringe benefits and wage supplements, earned in any pay period are due and payable within the number of days after the expiration of that pay period as provided in a written contract of employment. If not so specified, such wages are due and payable within the standard time lapse customary in the trade or within fifteen days from the end of such pay period. Overtime wages may be considered as wages earned and payable in the next succeeding pay period.

    Accordingly, New York law requires that manual workers are paid weekly and not later than seven calendar days after the end of the week in which wages are earned, and that clerical and other workers are paid not less frequently than semimonthly. Similarly, California law provides that wages are due and payable twice during each calendar month, but that salaries of executive, administrative, and professional employees of employers covered by the FLSA may be paid once on or before the 26th day of the month during which labor was performed if the entire month's salary is paid at that time.

    Similarly, there is no requirement under the FLSA that overtime compensation be paid to non-exempt employees at any specific interval. The general rule under the FLSA is that overtime compensation earned in a particular workweek must be paid on the regular payday for the period in which that workweek ends. When the correct amount of overtime compensation cannot be determined until some time after the regular pay period, however, the requirements of the Act will be satisfied if the employer pays the excess overtime compensation as soon after the regular pay period as is practicable. Payment may not be delayed for a period longer than is necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next pay day after such computation can be made.

    Can employers require non-exempt employees to work overtime?

    There are no maximum hours limitations (e.g., restrictions on the number of hours an employee may work in one workday, workweek, or work period) for adult employees under the FLSA. The Act merely requires overtime pay for the time worked in excess of 40 hours per week. Employers cannot require adult employees to work overtime if such employees do not receive the appropriate overtime payment for their employment, but can require such work of employees who are duly compensated. Unionized employers' right to require overtime of adult employees is subject to negotiation and can be governed by the provisions of a collective bargaining agreement.

    Does the law regulate the use of time clocks?

    Certain general rules apply in recording hours worked by employees. Although time clocks are not required, in those cases where they are used, employees who voluntarily come in before their regular starting time or remain after their closing time do not have to be paid for such periods provided they do not engage in any work. Their early or late clock punching may be ignored. However, when employees work more hours than their time cards show, the employer must still pay for those extra hours. Conversely, an employer that has no knowledge of an employee's off-the-clock overtime work does not violate the Act's overtime provisions by not compensating the employee for those hours.

    Minor differences between the clock records and actual hours worked cannot ordinarily be avoided, but major discrepancies should be discouraged since they raise a doubt as to the accuracy of the records of the hours actually worked.

    How should employers compensate non-exempt employees for travel time away from home?

    Travel away from home is clearly work time when it cuts across the employee's workday, as the employee is simply substituting travel for other duties. However, the time is not only considered hours worked on regular working days during normal working hours, but also during the corresponding hours on non-working days. Thus, if an employee regularly works from 9:00 am to 5:00 pm from Monday through Friday, the travel time during these hours is work time. This includes Saturday and Sunday as well. Regular meal period time is not counted. As an enforcement policy, that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile is not considered work time.

    Any work that an employee is required to perform while traveling must be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.

    Time spent by an employee in travel, as part of his or her principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Thus, where an employee is required to report at a meeting place to receive instructions or to perform other work there, the travel from the designated place to the work place is part of the day's work. This must be counted as hours worked regardless of contract, custom, or practice.

    Also, if an employee, who normally finishes his work on the premises at 5:00 pm, is sent to another job that he finishes at 8:00 pm, and is required to return to his employer's premises arriving at 9:00 pm, all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8:00 pm is work to home travel and is not included in the hours worked.

    Since travel time away from home is generally considered hours worked, employees must be compensated for such time in the same form that they are compensated for other hours of work. The Act requires payment of minimum wages and overtime in cash or in a negotiable instrument payable at par, such as a check, with the sole exception that costs of board, lodging, and certain facilities furnished to employees may be deducted from the cash amount paid. Payment in scrip, dope checks, credit cards, coupons, or similar devices is not permitted.

    Do employers have to compensate non-exempt employees for attending meetings or training events if held outside employees' normal working hours?

    Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:

    1. Attendance is outside of the employee's regular working hours.
    2. Attendance is in fact voluntary.
    3. The course, lecture, or meeting is not directly related to the employee's job.
    4. The employee does not perform any productive work during such attendance.

    Attendance is not "voluntary" if it is required by the employer or if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by non-attendance. The training is "directly related" to the employee's job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or for a new or additional skill. Time spent in such a course given by the employer or under her auspices is hours worked.

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    However, where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee's job even though the course incidentally improves his skill in doing his regular work. Thus, if an employee on his own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his employer, even if the courses are related to his job.

    Can employers "round off" when calculating employees' working hours?

    It is a common practice in certain industries, particularly where time clocks are used, to record employees' starting time and stopping time to the nearest five minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes, this practice of computing working time is acceptable, provided that it is used in such a manner that it will not result, over a period of time, in a failure to compensate the employees properly for all the time they have actually worked.

    In recording working time under the Act, insubstantial periods of time beyond the scheduled working hours, which cannot, as a practical administrative matter, be precisely recorded for payroll purposes, may be disregarded. The courts have held that such trifles are irrelevant. However, this rule applies only where there are uncertain and indefinite periods of time involved of a few seconds or minutes’ duration, and where the failure to count such time is due to considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time he or she is regularly required to spend on duties assigned to them.

    With all the above questions, be sure to check with the laws of your state regarding these issues.

    Note: This article is intended as information only and is not a substitute for legal or professional advice.

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