What is Considered a Working Hour under New Federal Overtime Laws?

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By now, you have probably heard of the sweeping changes made to federal overtime laws in mid-May of this year.  Previous blogs have covered the basic rules for overtime, what has changed based upon the new law, and a few strategies to prevent unpaid overtime allegations. In this installment, we will focus on what is a considered a working hour under new federal overtime laws for non-exempt employees and how to avoid confusion resulting in overtime allegations. We recommend that all San Diego employers thoroughly review their wage and hour policies with their attorneys.  If your attorney has not kept you up to date on the multitude of changes to employment law in 2016, or if you would like a fresh approach we invite you to contact the “lawyers for employers” at the Watkins Firm for a free consultation at 858-535-1511.

What is Considered a Working Hour in San Diego?

Any hour that one of your non-exempt employees is “on duty” is considered to be a working hour in San Diego.   An employee is generally considered to be on duty when they are in their work environment available for or performing work.  Federal law excludes some activity that falls outside of standard working hours based upon the definition of  “principal activity” such as passing through screening before or after a shift.  Carefully defining what is “on duty” to your employee in employment contracts and employee handbooks is part of the strategy to reduce or eliminate unpaid overtime allegations.

Here in California, an employee must be completely relieved of duty during meal and rest breaks.  The old model of allowing an employee to eat lunch at their desk simply cannot be permitted in 2016, unless you are willing to pay the employee for that time as well as the “penalty” or “premium” required by law for not taking the required meal and rest breaks.  California law requires employers to have a clearly communicated and consistent policy for times when an employee may be asked to work through lunch, or when they wish to work through lunch and use their unpaid “meal” time for a personal reason such as an offsite doctor appointment.

If you require employees to wear contact devices (such as a pager) or is expected to be able to be reached by text or phone during meal or rest breaks it is considered as a working hour under new federal overtime laws and you are required to pay them for that hour as they were in effect on “stand-by” and not completely relieved of duty.  Federal law provides heavy penalties when this applies to groups of employees including back pay for up to 3 years plus a matching penalty for “liquidated damages” in addition to substantial attorneys fees.  California laws relating to penalties associated with the failure to provide meal and rest breaks will apply, and these circumstances can expose employers to unnecessary risk for employment disputes and allegations of unpaid overtime.

In essence, if one of your non-exempt employees is actively available for or performing regular duties you are required to pay them for that time as they are “on duty” – even if it falls outside of their established work hours.  Your policies and procedures must clearly address hours of work and the employee’s responsibility to remain “off duty” outside of established working hours, unless approved in advance and in writing by their direct supervisor.  Employers and managers must take consistent action to monitor meal and rest breaks to ensure that employees are not available for work, or performing work related activities during these times.

It is important to note that any time on duty that is used for personal reasons is excluded from the requirement for compensation or overtime.