NonExempt Worker Time & Attendance Exemptions

FLSA Compliance Issues in Today’s Workplace

Employers are routinely challenged with complying with the Fair Labor Standards Act (FLSA). Under the FLSA, an employer is required to maintain accurate and complete records (including all required identifying information) for covered and nonexempt employee hours worked each workday and total hours worked each workweek. Additionally, nonexempt employees are entitled to overtime pay, which is compensated at a rate of at least one and one-half times their regular rate of pay for hours worked in excess of 40 hours per week.
While these requirements seem relatively straightforward, as they are applied in the workplace, compliance can become murky. Below are some common issues that arise for nonexempt employees in the workplace.

What if nonexempt employees work past their scheduled work time?

It is hard to find an employee in a traditional office setting that is immune from the daily hustle and bustle. Employees may be required to meet internal or external deadlines whether they are exempt or nonexempt.

When it comes to FLSA compliance, employees are required to be paid for any time they work. This means that if a nonexempt employee is required or allowed to work—even if the employer did not expressly authorize the time—then the employee is required to be paid for that time. For example, if a nonexempt employee is working on a project and works past their scheduled shift to complete it, then they must be compensated. Employers may want to consider developing a process for pre-approving overtime work to avoid unexpected payroll expenses.

What if a nonexempt employee works at their desk during their lunch period?

If the nonexempt employee is working through lunch, the employer will need to pay for that time. The FLSA does not require employers to compensate employees for meal breaks if the meal period lasts at least 30 minutes and the employee is completely relieved of duty and allowed to leave their duty station during that time (though they may be required to stay on the company’s premises).

Employers can prevent the additional payroll expense by creating a policy prohibiting employees from remaining at their desks or work areas during lunch periods. Further, employers should train managers to ensure they are not contacting employees while on a meal break and are encouraging employees to take their meal breaks. Be aware that automatically deducting time from an employee’s pay for a meal break without requiring the employee to punch in or out can lead to compliance problems. Employees are required to be paid for any work-related interruptions during meal periods, such as answering calls and emails. Requiring employees to clock in or out may help with compliance in this area. Additionally, having employees regularly sign off on their time cards to ensure accuracy and noting or excepting any time worked during meal periods may help with compliance.

While the FLSA does not require employers to offer meal breaks to employees, state or local laws may require them. Employers need to comply with both the FLSA and any applicable state or local laws.

What if a nonexempt employee works remotely on nights or weekends?

Employees have overwhelming access to laptops, tablets, and smartphones, so ensuring nonexempt employees are paid for any work done after hours (on their personal or work devices) is both essential and complex for employers. With certain limited exceptions, employers are required to capture all time worked by nonexempt employees.

Employers are encouraged to develop written policies and procedures that prohibit and/or prevent nonexempt employees from using mobile devices for work-related issues during non-working hours. Employers can help enforce this policy by prohibiting nonexempt employees from having remote access to work email and instructing managers not to contact nonexempt employees during non-working hours.

Failing to create clear, strong policies could be costly to employers. If employees work from mobile devices, their time should be recorded.

Ultimately, employers can facilitate compliance by adopting and consistently enforcing policies and training employees and managers on the employer’s expectations. If there are any questions about whether policies or practices are sufficient to avoid potential liability, the employer may choose to consult with employment counsel.