When Is an Employee "Working?" This Is a Complex Legal Question

04/13/2015 02:21 pm ET | Updated Jun 13, 2015

Employee "working" status triggers a variety of protections including, for many hourly employees, minimum wage and overtime standards. However, the term "work" was not precisely defined in the 1938 Fair Labor Standards Act creating a federal minimum wage. This comment provides a brief educational overview of the complex topic of "work." Consult experienced legal counsel or the U.S. Department of Labor or comparable state agency in specific employment and labor law situations.

In 1944 in a case involving transportation in a mine the U.S. Supreme Court defined "work" for the purposes of compensation as "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer or his business" (Tennessee Coal v. Muscoda Local No. 123). In response to this broad definition, Congress enacted the Portal-to-Portal Pay Act in 1947. This legislation stated (paraphrasing and simplifying) that compensation was not required for travel to and from the place of the primary employment activities or for activities that are preliminary to the principal employment activity. Additional rules from the National Labor Relations Board and the U.S. Congress, as well as judicial decisions to the current day, illustrate the political and legal forces at play over the word "work."

The federal Court of Appeals for the Sixth Circuit recently considered the case of casino security guards who had to remain on the premises, monitor two-way radios and respond to emergencies during their meal breaks (Ruffin v. MotorCity Casino). The Court denied wage compensation to the security guards.

The Court's standard was whether the meal time predominately benefited the employer or employee. The primary focus was on the radio monitoring and testimony that while the guards had to focus on the radio chatter, it rarely involved an emergency that disrupted their break. However, a mandatory 15 minute roll-call meeting before each shift, while compensable, could be offset by the non-compensable meal break time.

The Court described monitoring the radio as a de minimis (very minor) activity and not a substantial job duty. The Court emphasized the numerous activities the guards could engage in at meal time including making phone calls, watching television and using the Internet.

The Court cited the 1944 U.S. Supreme Court definition mentioned above. Prior decisions did not allow compensation for break time radio monitoring. Nor has the National Labor Relations Board required compensation whenever an employee is required to remain on an employer's premises while on break. If the requirement to remain on the premises is a way to extract additional work from the employee, then that time is subject to compensation. This case is but one example of the complex issue of "work."

Apart from this decision, on-call or waiting-time compensation follows similar rules. To what extent may the employee conduct personal activities while on-call and is there an agreement between the employer and employee that addresses on-call time? In this situation premise restrictions may be relevant. Sometime statutes or regulations mandate rest or meal breaks for employees such as those in transportation and health care.

Additionally, there are situations involving dressing in uniforms or protective clothing (called "donning and doffing"), sleeping time, lectures or other meetings and training programs, business- necessitated travel and home-to-work travel. As recently as 2014, the U.S. Supreme Court considered a "donning and doffing" case involving protective gear in which it analyzed the meaning of the words "clothes" and "changing" in a complex regulatory and legal context (Sandifer v. United States Steel). The court unanimously held that the time in question was not compensable work.

A further complication involves classifying the individual in question as an employee or independent contractor. Even if a particular individual is legally an "employee," wage hour law distinguishes between "exempt" and "nonexempt" employees with regard to overtime pay. An analysis of all these situations is too lengthy for this brief comment.

What is noteworthy is what constitutes compensable "work" is a legally complex question. Consequently, employers and employees should review assigned duties and a typical workday to determine if and when "work" is involved. The Department of Labor has information online.

While clocking-in and clocking-out may be important in resolving a "work" question, courts recognize that "off-the-clock" work is also compensable. Always involve experienced legal counsel in employment and labor issues.