In our “FLSA – Hours Worked” series we have reviewed situations, such as travel time, waiting time, on-call time, etc., that raise the question of whether the time should be considered hours worked for purposes of minimum wage and overtime compliance under the Fair Labor Standards Act (FLSA). In this segment of our series, we will discuss when show-up time should be considered hours worked.
The Rule According to the FLSA
As a general rule the FLSA requires employers to pay their employees for time actually worked. There may be some instances where an employee arrives to work, as directed by the employer, only to be sent home before any work is performed. Typically, the employer does not need to count the employee’s time showing up for work as hours worked. For example, a construction worker arrives to work at 6:00 a.m., as instructed by his employer. Upon arrival, the contractor informs the employee he will not be working that day because it is raining. The employee is sent home. In this instance, considering no work was performed by the employee, the FLSA does not require the employer to count the show-up time as hours worked; therefore, employers are not required to pay the employee for that time.
Also worth noting is that the FLSA does not require employers to pay employees for a minimum number of hours for showing up and performing work. For example, a construction worker shows up to work at 6:00 a.m. and works for 30 minutes at which time his employer sends him home because it has started raining. The employer would only be required to pay the employee for 30 minutes of work. It would not be required to pay the employee for any additional time or for a minimum number of hours. There is no requirement in the FLSA that employers pay employees a minimum of 1, 2, 3, 4, etc., hour just for showing up to work.
Employer and Employee contractual agreement
This is not to say show-up time is never considered hours worked. On the contrary, some employers and employees may have a contractual agreement, whether formal or informal, that addresses show-up time. The contractual agreement may set-forth a minimum number of hours to be counted as hours worked for show-up time. Additionally, if employers have a practice of paying employees show-up time, they may be required to pay employees in accordance with that practice, unless proper notice has been given to the employees that the practice has changed.
Show-Up Time vs. Waiting Time
The difference between show-up time and waiting time Often show-up time and waiting time are confused as being the same, but there is a difference. With show-up time the employee arrives to work with the anticipation she will perform work, but before work is performed the employee is sent home and is free to use the time for her own purposes. With waiting time, however, the employee arrives at work and is required to remain at work until her services are required. She is limited either in where she can go or what she can do with her time, or both.
For instance, an employee shows up to work on a manufacturing line and the equipment is not working. His employer tells him to wait at the facility until the equipment is repaired. Once the equipment is repaired, the employee begins working. The time the employee waits is considered time worked because the employee is not allowed to leave the premises or free to use the time for personal use. Instead the employee waits for instructions to resume working, which benefits his employer. If the employee was sent home and told not to return to work that day, it would be show-up time and it would not need to be counted as hours worked.
Without a doubt some situations do occur, as we have discussed in our “FLSA – Hours Worked” series, which raises the question of when an employee’s time should be counted as hours worked for purposes of minimum wage and overtime compliance. As you may have noticed show-up time is a situation that prompts this important question. When these situations occur, to ensure compliance with federal minimum wage and overtime laws and reduce possible employer liability issues, it is best to consult a lawyer who specializes in employment law.
Below are links to other topics covered in our FLSA – Hours Worked series:
- Travel time
- Waiting time
- On-Call time
- Rest and meal periods
- Sleeping time
- Meeting and training time
- Show-up time
- Time suffered or permitted to work
- Unauthorized time (coming soon)
* States may have their own minimum wage and overtime laws, including their own standards for when an employee must be paid for show-up time. Employers are required to apply the federal or state minimum and overtime law that provides employees the greatest benefits. For more information on state minimum wage and overtime laws, visit our pages on minimum wage and overtime.
Contributed by Suzanne Mathews