It seems like a simple enough question. It’s an important question, too, mainly because we start getting paid when work starts. That’s when your time becomes the bosses’; when they can tell you what to do; the moment beyond which you are “late for work,” with all that that means. (The related question, “When is work over?” should also be considered.)
In fact, for many workers, the answer to the question “When does work start?” is not so simple, and how some employers have answered that question has resulted in significant recoveries for wage theft and unpaid overtime. The failure by employers to correctly compute the actual time worked makes up a considerable portion of the estimated $15 billion stolen annually from the paychecks of the most vulnerable workers in the economy.
The law has developed with the principle that “getting ready to work” should not be paid, even though the worker may be on-site or otherwise interacting with the employer. Instead, workers should be paid when their activities begin benefitting the employer or starting with the “first principal activity of the workday.”
As you can imagine, there are as many scenarios as there are types of workplaces. Here are examples of activities that have been found to start the payable workday, i.e., when the worker goes “on the clock.”
- Turning on a computer or logging into a system (Caremark case, $15 million settlement);
- Going to an equipment yard and picking up a work truck and/or tools to take to a job (US Department of Labor opinion).
- Rolling silverware prior to a serving shift (the “80/20 rule” provides that if more than 20% of your time is not tipped work, you should be paid the minimum wage for that time).
- Being “engaged to wait,” i.e., reporting to work at the agreed time and being told to wait until needed, which often occurs in a retail setting.
- Starting with the first assignment, and not having the work broken up into pieces, i.e., not counting hours paid for travel between worksites or treating each worksite as a separate “job” for overtime purposes. This often occurs with security and maintenance workers.
- Doing administrative work, such as answering the phone, completing paperwork, attending meetings, etc. before or after your shift, or while on an unpaid meal break.
- In IBP v. Alvarez, 126 S.Ct. 514 (2005), the Supreme Court ruled that “donning and doffing” protective gear at a poultry processing plant was a principal activity of the job and compensable as hours worked under the Fair Labor Standards Act.
Additional complications and variations arise daily during the Covid 19 pandemic, as workdays become even more fragmented.
These small thefts of wages and overtime pay may seem insignificant, but in fact, they add up quite quickly. Groups of disadvantaged workers have been awarded judgments or gained settlements in the millions of dollars. As with consumer class actions and employment class actions, workers acting together have had success in stopping unfair and illegal practices.
There are federal and state laws, such as the Portal to Portal Act, passed in 1947, which purport to clarify the pay rules for workers in various situations, but these laws sometimes raise as many questions as they resolve. Portal to portal laws, initially created to clarify paid breaks and when a miners’ pay should begin (on arriving at the mine gate, or when they arrive at the working area), provide a starting point for the analysis, and often do not provide the ultimate resolution of the matter.
If your employer responds vaguely to questions about how your pay is calculated, or it seems there are missing hours after you “start” work, do not simply accept the answer, “It’s Portal to Portal.” If you have unresolved questions, checking with Pelton Graham can give you and your co-workers peace of mind knowing that your pay is correct and legal.
The professionals at Pelton Graham have successfully represented numerous individuals and groups of employees in wage theft cases, and we are ready to answer your questions today. Contact us for a no-cost, no-obligation assessment of your situation. We’re available for telephone, video, and in-person consultations.