Due to a staffing shortage, your company has experienced a backlog of customer service business. The associates who work in the customer service unit are non-exempt (they are eligible for overtime), are paid an hourly rate of pay and are scheduled to work eight hours per day, five days per week, with two 15 minute paid rest breaks and a 30 minute unpaid lunch period.

In order to address the backlog, the supervisor of the customer service unit assigned several associates to eat at their desks in order to be available to answer telephones during their 30 minute lunch period; another associate voluntarily sat at her desk during her meal period in order to chat with the associates assigned to eat at their desks; none of these associates were able to take their 15 minute morning and afternoon rest breaks due to the volume of customer calls; and, another associate, who customarily comes to work early to read the newspaper at his desk, voluntarily answered several customer calls prior to the start of his scheduled workday.

The associates approach their supervisor and request compensation for all of the extra work they performed. You receive the supervisor’s call asking how she should handle the associates’ request for compensation – what do you tell her?

Work Time

Under the Fair Labor Standards Act (“FLSA”) work “suffered or permitted” is work time for which non-exempt employees are required to be compensated. An employee is entitled to compensation (extra half-time pay) for hours actually worked over 40 hours in the workweek. Are each of the associates entitled to compensation under the circumstances described?

Rest Periods

The FLSA does not require an employer to provide rest periods. However, rest periods of short duration, typically 10 to 20 minutes, are common. The FLSA requires that such rest periods be counted as hours worked. In our hypothetical, the associates were already compensated each day for the morning and afternoon breaks. The fact that the associates worked through several of the break periods does not entitle them to additional compensation for such work time. (Ohio law also does not require paid rest periods, except employees under the age of 18 must receive a 30 minute break – which may be unpaid – every 5 hours)

Meal Periods

Under the FLSA, bona fide meal periods are not work time. In order to be bona fide, the employee must be completely relieved from duties during the meal period. Ordinarily, 30 minutes or more is long enough for a bona fide meal period. However, an employee is not relieved from duties if she is required to perform any duties, whether active or inactive, during the meal period. An associate who is required to eat at her desk to be available to respond to customers’ calls, whether or not she actually fielded a customer call, is working during the meal period and is entitled to compensation for such time. However, the associate who voluntarily sat at her desk was not working, and is not entitled to compensation for that time.

Pre-Start Time

Time before and after the regular work day during which an employee is completely relieved from duty is not work time. An associate who reports to the office prior to the commencement of the scheduled workday, but is free to use the time for his own purpose, such as reading the paper, is off duty. However, work not requested but “suffered or permitted” is work time. An employer cannot sit back and accept the benefits of an employee’s work without compensating for the work time. If an employer knows or has reason to believe that an associate is working, the time is work time. It is management’s duty to exercise control and make sure that work is not performed if it does not want the work performed. In this case, if the supervisor was aware (or should have known) that the associate was answering service calls prior to the start of his workday and did nothing to preclude the work, the associate would be entitled to compensation for the work.