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 Legal Briefs
By Gina Valeri Director of Legislative Affairs & General Council, APPMA With all the trade shows, customer visits, prospecting and other business travel required of employees in the pet industry, employers need to know the in's and out's of wage and hour law. The federal Fair Labor Standards Act (FLSA), as well as some state employment laws require all employees, not exempt from FLSA, to be paid a minimum wage and overtime pay over 40 hours per week. Wages are earned based on work actually done. But in many cases, employees must be paid for hours not necessarily engaged in work but, in some cases, while waiting to work, while traveling, or even eating. First, employers must determine which employees fall under FLSA. The wage and hour laws are intended to protect workers with little bargaining power. These workers are called "non-exempt employees" and must be paid the current minimum wage of $5.15/hour or more and time-and-one-half the regular wage for hours worked more than 40 hours in a given work week. Most employees are non-exempt unless they fall under specific categories set by the US Department of Labor (DOL) which include managers or highly skilled workers with a large amount of decision-making responsibility. These workers presumably work at a higher rate of pay for supervisory work which may require more time than an average work week permits. The agency is currently considering changes to the categories in order to address changes in the modern workplace. Second, employers must understand which activities constitute work for the purposes of wage and hour calculation. Though working time is not clearly defined, the Supreme Court has held that employees who wait for work are in a standby mode and must be paid for standby time. In addition, DOL regulations regard work to include even work performed by an employee that was not requested but permitted by the employer. According to DOL, "…[A]n employee may voluntarily continue to work at the end of a shift…The employer knows or has reason to believe that he is continuing to work and the time is working time." Employers must compensate for standby time unless the employee is expressly relieved from duty and permitted to leave the work area or the employee is relieved from work until a specified time and the time off is sufficient to permit the employee to pursue his/her own activity. This rule is complicated in the case of employees who are "on duty" for specific periods while not engaged in his/her normal work activities. For example, when at a trade show, employees who arrive at the exhibition center but are unable to assemble the booth because it has not arrived are considered on duty and so their time is compensable. This time is marked by its short duration and the fact that the employee is prevented from using the time to do his/her own activities. Similarly, "on call" employees' time is also compensable in some circumstances. Next, travel time is compensable if it is "out of town." This is distinguished from commuting time which is not compensable in most cases unless the travel is not within the normal commute area of the employee in relation to the work area. Travel between work areas in a given day is compensable. Therefore, if an employer sends a sales associate out to visit pet retailers in a given region, time in the car is compensable. In addition, travel time is not compensable if it is a) overnight; b) outside of regular working hours; c) devoid of productivity; and d) travel by passenger train, plane, or other common carrier conveyance. If travel time is compensable, is meal time also compensable? The answer is it depends. Most employees are given breaks for coffee, smoking or lunch. These breaks range from a few minutes for a coffee break to an hour for lunch traditionally. Any break that lasts less than 30 minutes is generally treated as compensable. Breaks which are not paid must be longer than 30 minutes in duration where the employee is completely relieved of all his/her duties and is free to leave his/her workspace. Another case where meal time may be compensable time is when business is conducted at the meal. Taking clients out to dinner during a trade show will be compensable where the employee is required to participate and business is conducted. Wage and hour laws are very complex and require special attention because there are hefty penalties for noncompliance. Be sure to keep track of your employees' time and pay them accordingly. For more information, contact Gina Valeri, APPMA's Director of Legislative Affairs & General Counsel, at gina@appma.org. Access more information about specific issues or services on the APPMA Website at www.appma.org and click on the "Products & the Law" icon. |
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