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View Full Version : 5 minutes before shift without pay? California


rebdomine
11-08-2008, 01:59 PM
When an employer doesn't pay for actual time worked but pays "to the nearest 15 minutes" (if you leave within 7 minutes you get paid for 15 but if you work 6 minutes you don't get paid for those 6 minutes) and they require you to show up for your shift 5 minutes before you are scheduled, since that 5 minutes is considered working time since they expect you to be there and start work, isn't that considered actual time worked? Aren't they obligated to pay you for that?

Disclaimer: This is not a policy at my job that is ever enforced, it's just something they did in the past and I'm curious about it, it doesn't affect me, but I'm curious about the legality of forcing employees to work 5 minutes without pay every single day before their shift and after. I'm pretty sure it's not legal, but I wonder if there is a reason they can make this a rule. And I don't really want to hear the response of, "well there's no law against it so they can make that a rule if they want to" - when it comes to wages I'm pretty certain they have to pay for any and all time worked...

DAW
11-08-2008, 03:06 PM
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_785/29CFR785.48.htm

CaliforniaLaborLaw
11-08-2008, 05:46 PM
When an employer doesn't pay for actual time worked but pays "to the nearest 15 minutes" (if you leave within 7 minutes you get paid for 15 but if you work 6 minutes you don't get paid for those 6 minutes) and they require you to show up for your shift 5 minutes before you are scheduled, since that 5 minutes is considered working time since they expect you to be there and start work, isn't that considered actual time worked? Aren't they obligated to pay you for that?

Disclaimer: This is not a policy at my job that is ever enforced, it's just something they did in the past and I'm curious about it, it doesn't affect me, but I'm curious about the legality of forcing employees to work 5 minutes without pay every single day before their shift and after. I'm pretty sure it's not legal, but I wonder if there is a reason they can make this a rule. And I don't really want to hear the response of, "well there's no law against it so they can make that a rule if they want to" - when it comes to wages I'm pretty certain they have to pay for any and all time worked... We are handling a class action case that is quite similar wherein non exempt employees attempt to login to an intranet which takes 5-10 minutes to do, before they can login on the time keeping system (same with logging out at at the end of the day). While this many not seem like much in damages, mutiplying such by ie. 1000 employees and going back 4 years, the damages are very large, not to mention if this additional non counted times throws the employees into overtime.

rebdomine
11-08-2008, 09:10 PM
DAW THANK YOU SO MUCH I have never been able to get my hands on that information before. THANK YOU!

"For enforcement purposes this practice of computing working time will be
accepted, provided that it is used in such a manner that it will not
result, over a period of time, in failure to compensate the employees
properly for all the time they have actually worked."

I guess the shift makes the difference in whether it would be legal or not. Opening shifts don't require extra work - when you're off, you're off. You leave. It's just the closing where people would stay 5 or 6 minutes past the hour. I guess if someone worked opening and closing shifts it would even out. Interesting.

Thanks!

DAW
11-09-2008, 08:16 AM
The key with the rounding rules is that while the employer can set things up to take some advantage of the rules (like show up 5 minutes earlier), if the employer is going to use the rounding rules, then the employer must consistently follow the rules in both directions. This is very black letter law. Employers who try to round only in their favor lose in court and administrative actions.

Setup, preparation, clean-up and other "what is hours worked" time is a more complicated issue. There have been a huge number of DOL administrative decisions and court actions in this area, and collectively these decisions have been somewhat inconsistent. I read the BNA payroll newsletter (a paid service) and I am frequently surprised by some of the decisions I read. This is not to say that employees do not often have this time legally treated as paid, but sometimes the government decides otherwise and often in what seems to be in a very inconsistent pattern. So call these types of issues a "maybe". Not a "give up", but also not a "sure thing" in way the rounding rules are. This is arguably a more complicated then average area of labor law, arguably one that expert legal advise is more likely to be needed. And not all lawyers are arguably expert in labor law. This is a specialty area in the law.

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