Your Right to be Paid for All the Hours You Work
Does anyone work a 9 to 5 job anymore? We work from home, get emails and text messages before and after normal working hours, and have to start early or work late to finish projects.
Even if you only work an extra 15 minutes here or 30 minutes there, it adds up over time. Just 15 extra minutes per week adds up to 13 hours per year. That is about two full days of work you are giving to your employer.
If you are paid by the hour, then you must be paid for all the time you work. The number of "hours worked" includes all time that you must be on duty, or on the employer's premises, or at any other prescribed place of work.
"Hours worked" also includes any additional time that you are permitted or allowed to work, even if that work is done from home. In other words, if your employer knew or should have known that you were doing extra work at home, then you have the right to be paid for that work.
Here are some of the most common issues that come up when counting the number of "hours worked."
Working from Home
Work that your employer allows you to do must be paid for, even if the employer did not specifically tell you to do the work. For example, you may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. Or you may have to bring work home to finish an assignment. If your employer knows that you are finishing work at home and does not tell you to stop, then the employer must pay you for that at-home work.
Whether waiting time is hours worked depends upon the particular circumstances. Generally, if you are told to wait for your employer to give you work, then you must be paid for the waiting time. For example, a secretary who reads a book while waiting for dictation or a fireman who works out while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."
If you are required to remain on call at your employer's premises, then you are working while "on call." If you are required to remain on call at home, or you are allowed to leave a message where you can be reached if needed, then you are probably not working while on call. This one is a little tricky. If there are constraints on your freedom while you are on call, then you may be considered working during that time.
Rest periods of short duration, usually 20 minutes or less, are usually considered working time because the breaks promote your efficiency for the employer's benefit. These short periods must be counted as hours worked. Unauthorized extensions of work breaks are not counted as hours worked when the employer has expressly and unambiguously communicated to you that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished.
Breaks to eat meals are not considered work time if they last 30 minutes or more. But you must be completely relieved from duty for the purpose of eating regular meals. You are not relieved if you are required to perform any duties, whether active or inactive, while eating. For example, if you must remain at your desk while eating lunch so you can answer the phone and transfer calls, then you are working and must be paid for that time.
If you are required to be on duty for less than 24 hours, then you are working even if you are allowed to sleep or engage in personal activities when not busy. If you are required to be on duty for 24 hours or more, then you may agree with your employer to exclude regularly-scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and you can usually get an uninterrupted night's sleep. No reduction in work hours is permitted unless you take at least 5 hours of sleep.
Lectures, Meetings and Training Programs
Attendance at lectures, meetings, training programs and similar activities must be counted as working time unless they are outside normal working hours, are completely voluntary, are not job related, and no other work is performed during that time.
The time you spend traveling from home before the regular workday and returning home at the end of the workday is not work time. Other travel time, however, may be considered work time.
Time spent traveling from one job site to another during the workday is work time and must be counted as hours worked.
If you regularly work at a fixed location in one city and you are given a one day assignment in another city and return home the same day, then the time spent traveling to and returning from the other city must be paid as work time. Your employer, however, may deduct the amount of time you would normally spend commuting to the regular work site.
Travel that keeps you away from home overnight is travel away from home. Travel away from home is work time when it cuts across your workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days.
Protect Your Right to be Paid for All Hours Worked
You need to take two steps to make sure you get paid for all the hours you work.
First, keep track of your time. If you can use your employer's time tracking system, great. Use it. If your employer does not have a time tracking system, or if you can only use it when you are in the workplace, then make your own time records. This can be as simple as writing down or recording extra time worked on a calendar. Or you can use a time tracking app on your smart phone.
Second, let your employer know about the extra hours you are working. The law says that you must be paid for "hours worked" that your employer knew or should have known about. Your strongest case for payment is when you can prove that your employer actually knew that you were doing extra work. For example, if you have to take work home at night to finish it, send an email to your supervisor or manager to let them know. If they do not object, then they have permitted you to do the work and must pay you for the extra hours.
If you believe that you have not been paid for all the hours you worked, call us at (212) 601-2728 to schedule a free and confidential consultation. We will review your specific situation and let you know what your options are.
John Howley, Esq.