Be Sure to Pay Employees for Pre- and Post-Shift Time

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Employers must pay nonexempt employees for all hours worked. But compensable time can be difficult to capture when employees have pre- or post-shift responsibilities, such as opening or closing a retail store or restaurant. Which activities must be paid? How can employers ensure they are recording and paying for all time worked? Here's what employment law attorneys had to say.

What Time Is Compensable?

Under the Fair Labor Standards Act (FLSA), employees must be paid for time spent before "clocking in" or after "clocking out" on activities that are necessary to perform their jobs. The U.S. Department of Labor (DOL) focuses on whether the activity is integral to performing the "principal activities" of the job. 

So the pre- and post-sift activities that should be recorded on time sheets will depend on the industry, explained Joshua Woodard, an attorney with Snell & Wilmer in Phoenix.

In some circumstances, he said, employees may need to be paid for time spent putting on and taking off protective clothing, inspecting equipment, logging on and off of computers, accessing databases, transmitting data, and completing post-shift security inspections and incident reports.   

John Skousen, an attorney with Fisher Phillips in Dallas, explained that pre- and post-shift work may include unlocking a building, setting up supplies in work areas, reviewing work orders, and responding to calls about work issues or scheduling.

Furthermore, employees may have to take additional pre- and post-shift steps due to the COVID-19 pandemic, noted Adam Kemper, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla. Many employers added temperature checks and other health-screening measures to their safety protocols to help curb the spread of the coronavirus.  

Does the screening take more than a few minutes? Those "few minutes" could add up quickly, Kemper said. "During the pandemic—and in general—it's important to be mindful that guidance continues to be updated."

For instance, the DOL has said that temperature checks are compensable if they are "integral and indispensable" to the employee's job. The department provided the following example:

If a nurse who performs direct patient care services at a hospital is required to check her temperature upon arrival at the hospital before her shift, the time that she spends checking her temperature upon entry to the worksite is likely compensable because such a task is necessary for her to safely and effectively perform her job during the pandemic. 

Employers should note that under the federal "de minimis" rule, businesses can require employees to work a trivial amount of time (up to 10 minutes) each day without compensation if the time is administratively difficult to track. But this is not necessarily the case under state law. For example, the California Supreme Court has said that retail employers must pay workers for routine off-the-clock activities, such as setting the alarm and closing the store at the end of the day—even if the amount of time is minimal.

Review Policies and Practices

Employers should ensure time-keeping policies are in writing, Woodard said. Companies often have unwritten time-keeping policies and practices. However, this can lead to a lack of uniformity in how the employer manages pre- and post-shift time, he observed. He recommended that employers have workers sign an acknowledgement that they've read the policy and keep copies of these acknowledgements in personnel files.

Additionally, employers may want to audit their time-keeping procedures. Perhaps the time clock is located in a place that makes it unrealistic for employees to clock in before they start performing work, Skousen noted. In that case, the time clock may need to be relocated.

Perhaps an employee performs field work and doesn't have access to the time clock. "Workers may keep manual time logs and write down the scheduled shift times without regard to actual pre- and post-shift working times," Skousen said. This problem can be solved by educating field workers on what constitutes "hours worked," he explained.

Employers may want to add a few extra minutes to time sheets if employees log into a computer to record their time, and the computer is slow to boot up, Woodard suggested. He noted that new time-keeping technology gives employers more options to capture all time worked.

Sometimes employees perform off-the-clock work that has not been authorized. Employers should be aware that the FLSA requires them to pay for time spent working even if wasn't approved. Employers should make it clear that employees are prohibited from performing pre- and post-shift work without approval but also let workers know that all such time must be reported and will be paid, Woodard said. "If an employee works without authorization, an employer typically has the right to discipline the employee but nevertheless must pay the employee for all time worked."

Provide Training on Time-Keeping Rules

Russell Bruch, an attorney with Morgan Lewis in Washington, D.C., said a best practice is to provide training to hourly employees and their managers so that everyone knows what constitutes compensable time. "If the company uses time clocks to record time worked, employees should be instructed on how to report work that may occur outside of the scheduled hours or when away from their primary work location," he said. 

Skousen noted that managers and front-line supervisors should understand the meaning of "hours worked" under applicable federal and state law. "Curing time-recording errors must start at the top where managers implement and enforce the policies," he said. "Because systematic liability accrues every day when errors occur, the accumulation of liability could lead to millions of dollars of exposure."

Woodard said front-line supervisors should know when to add time to an employee's time sheet and confirm in an e-mail to the employee that such time has been added.

Employers often overlook the value in approving requests from employees to occasionally perform pre- or post-shift work, he noted. However, employers can promote accurate time-keeping by providing a mechanism for employees to report and be paid for such work.

Skousen recommended that employers create a culture that encourages workers to record all their working time. Court cases often involve testimony from employees who claim that they only recorded the time they thought their employers would accept as proper working time. In the end, he said, employers are responsible for recording the correct time and paying employees for all hours actually worked. 

[Want to learn more about wage and hour compliance? Join us at the SHRM Annual Conference & Expo 2021, taking place Sept. 9-12 in Las Vegas and virtually.]

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