One area of wage and hour law that has really been heating up in the past five years relates to so-called "off the clock" work. This development has probably been inevitable. As more and more class action litigation challenging the classification of employees has been filed and gone into “discovery,” plaintiffs' lawyers have had more and better opportunities to delve into the minutiae of company timekeeping records (and FLSA regulations) and come up with ever more creative claims.
Time spent working before leaving or after coming home, time spent travelling, and time spent changing into and out of uniforms in particular are coming under increased scrutiny — often in the same class action litigation.
Employers that stick their heads in the sand — even when they know that hourly employees are logging into their computer systems or corresponding via BlackBerry® or the Internet from home — may be in for a rude awakening. Particularly when large numbers of employees are engaging in such activity, even if only for a short time each, courts are increasingly less inclined to view the activity as “de minimis” — and hence non-compensable. Rather, such activity can be deemed to be compensable work, particularly if a significant number of employees are starting their days by logging onto a company computer system for five or 10 minutes before leaving home.
An additional problem spawned by such activity at home is that once an employee does any work during a workday, activities that come after — such as commuting — that might otherwise not normally be considered “work” may become compensable. This is because once work has commenced on a given workday, under the FLSA's “continuous workday” doctrine, time that might otherwise be non-compensable (such as normal commuting time) can become compensable. Driving time from home to work is not compensable. But if “home” has become a “workplace,” it is treated just like any other workplace — and driving time between workplaces has always been compensable. Similarly, when employers require employees to put on a specific uniform at work, the continuous workday can commence, and all (non-break) time until that uniform is taken off can become compensable.
Now, more than ever, it is important that employers keep abreast of legal developments in the wage and hour arena and proactively audit which activities they do and do not consider to constitute compensable work.