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Getting Paid for Not Working

Every worker dreams of a job where they get paid for not working. This differs from doing relatively easy work and getting paid or not getting paid for your work. What about getting paid for not working at all?

The Fair Labor Standards Act (FLSA) covers federal minimum wages and overtime pay and defines "work" for payment purposes. It also establishes regular paydays. Through the Wage and Hour Division, the U.S. Department of Labor (DOL) enforces the FLSA.

The FLSA sets the number of hours in a workday and workweek and when you are "at work" and "not at work." In general, any time you are under your employer's control, your employer must pay you. This includes on-call time, travel time, and even sleep time. If your employer has not been paying you for this time, you may be entitled to these unpaid wages.

State minimum wage laws differ from federal government laws. Your own state minimum wage rate may be higher than the federal rate.

In these situations, employers may have to pay employees' wages for time when the employees are not physically working.

Sleep Time

Some jobs need employees to stay at the worksite for 24-hour shifts. These include full-time caregivers or nurses, security guards, ambulance staff, and private medics. These workers may get payment for time sleeping.

The DOL's Wage and Hour Division says employees scheduled to work less than 24 hours per shift must get paid for the entire shift. In other words, a 23-hour shift gets full pay, even if the worker sleeps five hours.

For shifts of 24 hours or longer, the employer and employee have two options. They can agree upon an eight-hour sleep period. The employer should provide sleeping facilities for the worker. In this case, the sleep period is unpaid since the worker is not "under the employer's control." If the worker gets less than five hours of sleep for any reason, they get paid for the entire 24 hours.

The best example is an on-site security guard working at a remote construction site. They usually live in a small trailer at the location for 48 or 72 hours at a time. Once the crew leaves, they set the alarm and sleep at night. But, if anything goes wrong, the guard must investigate.

For city employees like firefighters who work so-called Kelly shifts (three days on, four days off), pay and sleep time get negotiated in collective bargaining agreements with the city or county.

On-Call Time

Sometimes, your job is to wait. If a job requires you to stand by and wait for an assignment, employers may have to pay you for your wait time. On-call and standby jobs are sometimes used interchangeably. The FLSA focuses on when employers pay on-call time and when they do not.

If you spend your on-call or standby time at or near the employer's premises waiting for an assignment, you're entitled to pay whether you receive an assignment. For instance, employers must pay delivery drivers who come in and wait for orders, even if they never deliver any orders that day.

If you spend your on-call time at a different location, your employer pays you if there are heavy restrictions on your time or activities. For instance, an airport limo driver who must wait at an airport taxi stand for fares in a marked vehicle gets paid for the wait time.

If there are no restrictions on the worker, and they are on-call for emergencies or consultations after work hours, they do not need to get paid for the on-call time. An example would be a handyman who is on-call for emergencies at an apartment complex when the maintenance staff is busy. But, if the employee must respond to calls, the employer may have to pay for standby time.

Travel Time

Although driving to and from work eats up a significant part of your day, that time is separate from your hours of work. Even if you use a company vehicle, commuting to and from work is not part of your pay period and is not included in your pay.

But, there are some situations when travel time is part of your pay:

  • If you must leave your primary location and travel to other job locations. In other words, your employer cannot ask you to clock out and clock back in between locations.
  • If your employer sends you to an alternate worksite, it may have to pay for the extra travel time from your home to the workplace. Your state may have restrictions on the distance you need to travel before your employer must pay you.
  • If your employer calls you in on an emergency basis to cover another shift, you may request travel time. This is not covered by federal law, but some state laws include it in their labor laws.

Meal and Rest Breaks

Nobody wants to work all day without a break. Labor unions evolved in part because workers needed time to eat. The FLSA does not mandate any specific break periods. Employers must pay break periods at the employee's hourly rate.

Employers do not have to pay for meal breaks. But, employees must be free of all duties during their meal break. If they must carry out any tasks during the break, even answering phones or taking notes, they must get their regular rate of pay for the break time.

Twenty-one states have mandated meal break laws. Employers must provide 30 minutes of unpaid time for meals in these states unless the employment agreement says otherwise.

Training and Education

According to the FLSA, an employer must pay for all training time unless all four of these factors exist:

  • The program takes place outside of regular work hours
  • Attendance is voluntary
  • The course is not job-related in any way
  • The employee does not carry out any work-related activities

So, if your employer wants you to attend a weekend seminar on improving your self-confidence that might help you increase your sales, your employer does not have to pay for it. If your employer tells you to attend a weekend seminar on improving your sales technique, your employer probably has to pay.

Frequently Asked Questions

Not everyone has the promise of a regular payday. With the rise of the gig economy, more people fall outside the usual job definitions. These FAQs may answer some of your questions about these unusual situations.

Does the FLSA Cover Independent Contractors?

The FLSA covers some independent contractors. If the contract states the contractor must receive an hourly wage or the employer treats them as a regular employee, they may have some of the rights of an employee. But, independent contractors are only paid for the time they work.

Do Employers Have To Pay for Sick Leave?

The Family and Medical Leave Act (FMLA) guarantees eligible workers up to 12 weeks of unpaid leave each year to care for themselves or family members. Some states have more medical leave laws. But, paid sick leave and vacation pay are benefits offered by employers and collective bargaining agreements.

What Is Wage Theft?

You must get fair compensation for all hours you work. That includes travel time, working breaks, and on-call hours. Any time an employer does not pay an employee's wages, it is wage theft. If you notice shortages in your paycheck, breaks and travel time could be missing. If you believe you have a wage claim, you may be able to take legal action.

Get Legal Advice

Everyone deserves payment for work done, even if that work is just sitting and waiting. You need legal advice if your last paycheck didn't include all your sitting and waiting time. Speak with an employment law attorney in your area for help.

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