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A few weeks ago I was working as a tutor for a major chain in the Chicago suburbs and was paid hourly. Usually my shifts were just a few hours, say from 4 to 7. I'd show up 5 minutes early or so just because that is how I am, and I'd always be prepared to start on time, though to be honest I was cutting it close a lot.

However, we started getting emails asking us to consistently be there 15 minutes before our shifts started to prepare. Preparing in this case means things like getting that day's student folders out, getting the iPads signed out and logged in, etc.

These emails were sent out every few months to all employees so it wasn't like anyone was specifically targeting me. I just ignored these emails because I felt like they had no right to ask this when they weren't paying us for this time. No one ever called me out on it, nor was my performance ever questioned, so it never really became an issue. We parted on good terms, I just didn't have the time to keep doing this work.

Anyway like I said this is a past job but I'm still curious if this was something they could actually get away with doing.

47

Ultimately this depends on whether your job is qualified as exempt or non-exempt. In short, if you are non-exempt your employer is required to pay you for every hour worked, including overtime. Exempt employees receive a salary irrespective of their actual hours worked and the employer is largely free to put constraints on their working time however they choose. In both cases, the employer has to pay the agreed upon salary per hour or week/month, there is no legal way for a company to avoid paying employees for work performed.


Now, to expand on this in more detail, most of this is covered in the Federal Labor Standards Act of 1938. The FLSA is a federal statute that applies to most commercial organisations. Companies with a yearly gross revenue below $500,000 may be exempt but key qualifiers are listed in the act itself: FLSA - 29 U.S. Code Chapter 8, Sec. 203. Definitions (1) (A). Whether your company is covered is generally a question for a lawyer or perhaps your state labor agency.

Exempt versus non-exempt

While some jobs are classified as exempt by definition (e.g. "outside sales"), for most employees it depends on:

  • how much they are paid,
  • how they are paid, and
  • what kind of work they do ("exempt duties")

As the FLSA states, with few exceptions, to be exempt an employee must:

  • be paid at least $23,600 per year ($455 per week)1, and
  • be paid on a salary basis, and also
  • perform exempt job duties

1 - This number was set to change to $47,476 annually or $913 per week on December 1st 2016. For details see my answer on the changes here

Exempt duties are classified as executive, professional or administrative. Normally, meeting all three "tests" automatically qualifies an employee as exempt. Employees that are treated as exempt (i.e. receive no overtime pay) but don't meet these tests are legally considered non-exempt and can challenge their status for years after the fact. If successfully challenged, the employer will be required to pay out back pay for all the overtime the employee worked.

The FLSA also requires that a non-exempt employee is paid for overtime even if it's voluntary or the employee offers to work extra hours for free (for details see the Work Time section below). To protect employees' rights in coercive situations they cannot legally waive their right to overtime pay. It's for these reasons that business owners or HR managers should be aware of this policy and ensure that they comply fully as they can risk heavy fines or collection of back pay.

Exempt employees have "virtually no rights at all" under FLSA overtime rules while non-exempt employees are entitled to receive one and one-half times their "regular rate" for overtime, defined as each hour they actually work over the applicable FLSA overtime threshold in the applicable FLSA work period (typically 40 hours per week).

Work Time

Now that that is out of the way, we come to the subject of defining work time. The FLSA covers this in detail. It's a bit wordy but I'll reproduce a section here with relevant sections highlighted:

All time spent by an employee performing activities which are job-related is potentially "work time." This includes the employee's regular "on the clock" work time, plus "off the clock" time spent performing job-related activities (which benefit the employer). Potential work is actual work if the employer "suffered or permitted" the employee to do it. An employer suffers or permits work if it knows the employee is doing the work (or could have found out by looking), and lets the employee do it.

With only a few exceptions, all time an employee is required to be at the premises of the employer is work time. All regular shift time is work time. This includes "breaks" (if there are breaks), and "nonproductive" time (for example, time spent by a receptionist reading a novel while waiting for the phone to ring). In addition, all time spent by an employee performing work-related activities that the employer suffers or permits is work time, whether on premises or not and whether "required" or not. Work done "at home" or at a place other than the normal work site is work, and the time must be counted. "Voluntary" work is work, and the time must be counted. "Unauthorized" or "unapproved" work is work and must be counted (provided that the employer knows or should know it is being done and permits the employee to do it). It is the privilege and responsibility of the employer to "control the work" of its employees. If an employer does not wish an employee to perform work, it must prohibit the employee from doing so if it does not wish to include that work time in the required FLSA pay computations. An employer may not accept the benefit(s) of work performed by its nonexempt employees without counting the time in computing pay due under the FLSA. Important FLSA regulations on these points are at 29 CFR §§785.11, 785.12, and 785.13.

"Off the clock" work

The FLSA goes on to clarify off the clock work (again, emphasis mine):

Many FLSA lawsuits have involved employers failing to include time spent by employees performing work activities outside of their normal shifts. Some employees, for example, may "come early" and start working before the official start time of their shifts. Such time counts as work time and must be included in FLSA pay computations, provided only that the employer knew or should have known that the employee was beginning work early (and, of course, to the extent that the employee spent pre-shift time actually performing work activities). Pre-shift "roll calls" are work time. Time spent setting up equipment before the official start time of a shift is work time. Some employees may similarly "stay late" after shifts performing work; this time must be counted as work time, as well. Time spent by an employee cleaning equipment after the close of a shift is work time. Post-shift work time could also include time spent by an employee performing job-related activities "on the way home," as for example a secretary who drops off the day's mail at the post office or delivers some paperwork to a customer or supplier. Some employees take work home. That time may well be work time. Similarly, if an employee is contacted at home by telephone for work related reasons, the time spent is work time (and, of course, if an employee is "called back" to work, the time counts as work time).

Your Situation

So let's look at your situation. We can safely assume from your description (max of 6 hours per week, standard retail work) that you qualified as non-exempt. The email you reproduced states:

PLEASE be here AT LEAST 15 minutes prior to your start time. We know things happen, and if you are going to be late, please call us to let us know.

So in summary we clearly see that pre-shift work does qualify as work time which means you should have been paid for it. Your employer explicitly requested employees to come in early, which means they would have known that employees were beginning work early. That coupled with the clear definition in the FLSA of pre-shift work as work time means you should have been paid for that time. If they had requested you to come in 15 minutes early but not work during that time, we're in more of a grey area since you're not explicitly performing job duties but as the FLSA states " all time an employee is required to be at the premises of the employer is work time".

In closing, if you feel comfortable doing so, consider contacting either your former colleagues or the company and advise them of the requirements that the FLSA places on companies employing non-exempt staff. It could be that local management is simply ignorant of the law and if it's a large chain their HR team will be quick to sort this out. If they persist in refusing to count this time as working time, your former colleagues should contact a lawyer or your state labor agency which is generally good at following up on these issues.


Necessary disclaimers: I am not a lawyer and this post does not aim to give legal advice. It is merely intended to summarise the contents of the FLSA. The linked site (FLSA.com) seems to be commercial in nature but is run by registered attorneys and the pages linked seem to summarise the FLSA correctly.

  • +1 Fantastic answer... Probably simply ignoring the requests altogether was the best thing to do after all, because fighting for the pay for those 15 minutes does not help in creating pleasant working conditions. – Stijn de Witt Aug 19 '15 at 20:41
  • @StijndeWitt My usual advice when the employer is getting this wrong is to raise it as a concern not a complaint: "I think that if we ask employees to come in early we're legally required to pay them for their time." and take it from there. In the vast majority of cases this is simply due to management not understanding the requirements of the FLSA. But you're right that ignoring generic emails was probably the best course, especially since the work presumably didn't suffer from it. – Lilienthal Aug 20 '15 at 7:46
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    Great answer and I think it applies in this specific OP's situation. The recent Supreme Court decision handed down in the US may not apply here but is worth mentioning as it puts what off-the-clock "job related activities" are into an ambiguous area. – Conor Aug 20 '15 at 20:57
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    In practical terms, start tracking your time immediately (including keeping a copy of those notices). While it may not be the best plan to make a deal of it while you're still working there, as the post mentions, you can go for back pay after you've ended employment. And having a nice binder of "here's you asking us to come in" notices will go a long way to collecting that money. – Allen Gould Oct 2 '15 at 15:24
  • It is now well past Dec 1 2016. You may want to update the $23,600 per year accordingly. – a CVn Jun 30 '17 at 12:56
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Personally, if I was on fairly good terms with my boss, I'd go ask for clarification. Chances are that this email was being subtly directed at one or two employees who are not arriving before their start time (ie are late). Your boss likely doesn't want to cause a HR row, just to drop the hint to them that if they can't get in on time, they need to adjust their routine so that they are: which may mean arriving early in general so that delays merely make them "on time" not late. If you're consistently on time or a few minutes early, it's probably not you that the email is directed at.

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    I suppose this could be possible but I actually almost never saw anyone arrive late. In fact I was usually the last one to arrive for a shift. Mind you I didn't work every day so it is possible there were late arrivals on other days. – Andrew Whatever Aug 21 '15 at 17:38
  • @AndrewWhatever Some companies have a no-tolerance address every issue culture. If a person came in late once, or missed a shift once, it gets reported, and then someone comes up with a plan to make sure it doesn't happen again. This could be the output of such a plan; however, addressing every issue can cause problems, especially when the deviation from an ideal is not stable. Does your company send out lots of decrees? If so, you probably won't get much pushback if you have a good track record and ask for some leniency, with a promise to notify real lateness earlier than 15 minutes. – Edwin Buck Jun 30 '17 at 15:11
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I'm still curious if this was something they could actually get away with doing.

To answer your specific question...

Labor law is fluid. Interpretations change, and the specifics of a situation are very, very important.

Employers "can get away with doing" lots of things that are on the borderline of legality - until they are successfully challenged and forced to stop.

Without knowing all of the specific history and details of this case, nobody here can honestly tell you if what your former employer was doing was in accordance with the law or not. Folks can form opinions based on what they have read, and based on the few paragraphs in your question. But real laws are far more complex and must be interpreted and adjudged by professionals using far more details.

Based on what I have read, and on how I interpret your situation, an employer cannot force you to "prepare for 15 minutes off the clock". However, I could imagine cases where that would be permitted. Phrases like "employer demand" versus "email asking" may matter legally. And an improper email from one supervisor may not constitute an illegal company action. Details matter.

That said, they clearly can "get away" with it, until they are forced to stop, or until they choose to stop on their own.

If you feel strongly about your former employer's practices, you can encourage your former co-workers to seek professional counsel with an eye toward assessing their actions and forcing a change if appropriate.

  • Also if you feel strongly that they were not following labor laws, you can report them to your State labor Department and let them investigate. I have seen people get back pay when some illegal practices were reported and the Labor Department investigated. Whether they will or not depends on the severity of what they are doing and the staff's current workload and what, if any, proof you can provide to ensure this is not just a disgruntled ex-employee. – HLGEM Aug 25 '15 at 20:02
  • For what it's worth, employers can also "get away with doing" things that are squarely illegal, not remotely borderline, until they are successfully challenged and forced to stop. That is among the reasons certain employers are keen to foster the idea that a dispute with a previous employer is a bad sign in a job candidate. I mean, in a lot of cases it's true, but threatening whistle-blowers that they'll become unemployable is their main means of avoiding being challenged and forced to stop. – Steve Jessop May 24 '16 at 13:12
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What constitutes work time was addressed by the US Supreme Court in a case a few years ago. This is a very complex issue.

In The company requires you to be ready to start work at X time, they need to know if you will be ready to start the shift. At 15 minutes prior to that start they will be scrambling to cover your shift if you are not on the premises or have not notified them that you are on your way.

By the way if push comes to shove the company will just adjust your pay rate specified in the contract to cover that extra period. Instead of $20 per hour and a three hour shift, they will pay $17.14 per hour for a 3.5 hour shift and require you to arrive 15 minutes early and stay 15 minutes later.

  • 1
    Can you provide any evidence of a company having made such a wage adjustment in response to their timekeeping policy being challenged? – Air Aug 19 '15 at 23:40
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    If the department of Labor from the state or the federal government decides that they have to pay that prep time, there is nothing stopping them from adjusting the hourly rate they will pay going forward. Some people will resign, but the business will replace them. I have known companies that have cut workers pay when the economics of the business changed. – mhoran_psprep Aug 20 '15 at 10:23
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    To be honest this place already didn't pay much and seemed to struggle to consistently keep enough staff to cover all of the shifts so... I doubt they would do well dropping pay rates. – Andrew Whatever Aug 21 '15 at 20:33
  • If they wouldn't do well dropping pay rates, then eventually they also won't do well asking for an extra 15 minutes unpaid. Employees don't necessarily make a correct mental calculation as to what they're effectively being paid, so a bit of obfuscation to boost the headline hourly rate might help the employer. But given the choice between $20 an hour and no unpaid setup time, vs $20 an hour and 15 minutes unpaid setup time, eventually folks'll switch to the job that gives them a lie-in just like they'd switch to a job paying slightly more per hour. – Steve Jessop May 24 '16 at 13:20
  • And of course the big reason for the dept of Labor to be a stickler about including all the hours into the wage rate calculation that should be there, is to enforce any applicable minimum wage. A company can reduce the wage from $20 to $17.14 if so ordered, but it can't reduce it from $8.16 to $7. – Steve Jessop May 24 '16 at 13:22

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