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Sleeping on the Job? and Other Compensable Time Questions

By Net Assets posted 01-12-2017 04:06 PM

  
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Human Resources |

From the archives: While fundraising events, overnight trips and training programs can be excellent opportunities for school employees, they can also create confusion when it comes to paying non-exempt or hourly employees who work beyond their regular schedule. 

Article by Grace Lee, NBOA

This article originally appeared in the March/April 2015 Net Assets.

When non-exempt staff work a “regular” scheduled workweek, it is relatively easy to calculate their hours and pay them properly. Tracking hours becomes more challenging when they travel or participate in additional activities. The Fair Labor Standards Act (FLSA) has special rules for work travel and other compensable time spent by non-exempt employees.

Generally under the FLSA, non-exempt employees are paid overtime for all time worked over 40 hours in a workweek. A workweek is defined as seven consecutive days beginning when the employer chooses (for example, 12 a.m. Sunday to 11:59 p.m. Saturday) and must be predetermined. “Compensable time” is any time a nonexempt employee has been assigned or permitted to work. This may include work performed at school, at home and even before or after the regular work day.

Work Travel and Overnight Trips

If a non-exempt employee is required to travel on an overnight trip, he or she must be compensated for all hours spent performing work at the destination. What is not compensable is “duty-free” time: when the employee is free to come and go, is sleeping or otherwise has free time at the hotel, even though she is only there because of work.

What about travel time for an overnight trip? Travel that involves an overnight stay is compensable only if it happens during the hours of her regular work day, whether it’s a “regular work day” or a day on which she usually doesn’t work.

Assume she regularly works from 9 a.m. to 5 p.m. Monday through Friday. Her travel time for overnight trips is compensable if it happens between those hours, even on a Saturday or Sunday, but not if it is outside these hours—for instance, if she departs at 6 p.m. by bus to a campsite for an outdoor education trip. If that same bus ride started at 3 p.m. and ended at 5 p.m., the employee would be compensated for those two hours.

What about one-day travel? If a non-exempt employee must travel for work and returns home the same day, the employee must be compensated for time spent traveling above and beyond her regular commuting time.

Then again, if the employee performs any work while traveling—whether for a one-day or overnight trip—that time must be paid regardless of when the travel takes place. As a result, it is important to establish and communicate clear policies for non-exempt employees regarding whether work may be performed during work travel time (on the plane, bus, train, etc.).

Fundraisers, Book Drives and Other Events

Schools commonly have evening auctions, receptions, book drives and other events outside of the regular work day. In general, if a non-exempt employee is required to attend such an event, that time is considered compensable even if she is not performing work that she usually performs in the regular work day.

For example, if the school requires all employees, including non-exempt staff, to “volunteer” two hours at the weekend book drive, those hours must be included as compensable time. If, however, a non-exempt employee truly volunteers for an event outside regular work hours and does not perform work she regularly performs, those hours do not need to be compensated. For example, a teaching assistant who volunteers to be a greeter at a Saturday night auction, and is not required to volunteer, need not be paid for that time.

Seminars, Lectures and Training Programs

When non-exempt school employees attend lectures, meetings, training programs and similar activities, their time is NOT working time if all of the following criteria are met:

  • Attendance is outside their regular working hours
  • Attendance is voluntary
  • The course, lecture or meeting is not directly related to their job, and
  • They do not perform any productive work during such attendance

A seminar or training program is “directly related” to an employee’s job if it is designed to help her perform her job more effectively. However, if a school offers a lecture by an author or motivational speaker for employees’ general benefit, voluntary attendance outside of work hours is not hours worked, even if it is job-related or paid for by the school. Likewise, schools do not need to pay employees who voluntarily attend after-hours independent courses and classes that the school does not require. Even if the school pays for part of the tuition through an employee benefit plan, the time spent at the course is not compensable time.

Recommendations

  • Ensure that all employees are properly classified as exempt or non-exempt.
  • For non-exempt employees, keep clear records of hours worked.
  • Train supervisors to monitor non-exempt employees and clearly establish when an activity is voluntary or mandatory.
  • Set a clear policy that non-exempt employees must seek approval before working beyond their regular schedule (including working from home, working while traveling, working late or coming in early).
Grace Lee is NBOA’s vice president, legal affairs. Lee is an independent school law attorney who has represented independent schools in various employment and related matters. At NBOA, she provides guidance and oversight of association resources and programs in the areas of employment issues, risk management, and other compliance and regulatory matters that impact independent school operations.

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