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What Counts as Being on the Clock?


Most people have heard of the 40-hour work week. While some European nations have shorter work weeks for employees, in many American jobs employees expect (and are entitled) to be paid overtime at a rate of one and a half times their regular hourly pay rate for every hour they work over 40 in a given work week. The Fair Labor Standards Act exempts some types of employees, like lawyers, from these requirements, but most lower-wage jobs are covered. For employees who start their tasks the minute they walk into an office and who are able to go home the minute their shift is over, figuring out what counts as “hours worked” is fairly simple. But for some folks in some kinds of job, it’s not that easy. So the question becomes, what counts as work time?


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Standing in a Security Line

The United States Supreme Court addressed this issue just last year in a case called Integrity Staffing Solutions, Inc. v. Busk. In that case an employer required its employees, who were warehouse workers, to undergo an “anti-theft security screening” each and every day when they left work at the warehouse. These employees were the ones who retrieved the company’s inventory and packaged it for shipment. They each spent roughly 25 minutes in line each day.

The warehouse workers argued that the chunk of their day that they spent standing in that security line should count as work time, and that they should be paid for it accordingly, including overtime if standing in the line forced them to go over 40 hours a week. After all, these workers were not standing in the line for fun, or for their health. It was something that they were required to do in order to do their job. So it makes sense that they should be paid for their time, right? The Supreme Court did not agree, and held that the warehouse workers did not have a right to be compensated for their time.

So Why Don’t Employees Get Paid for Their Time?

The United States Congress is to blame for these warehouse employees being forced to stand in line by their employer without pay. When the Fair Labor Standards Act first became law, employees in a wide variety of fields filed lawsuits over similar practices in their own industries, and they won. Courts ordered businesses to pay workers for their time. A whopping 1,500 lawsuits lead to employees being paid almost $6 billion in back pay and liquidated damages for their time before and after their official “shifts” that they had been forced to give away to their employers. Congress determined that these employers being forced to pay their employees constituted an “emergency” and in response it passed the “Portal-to-Portal Act.”

What did the Portal-to-Portal Act Do?

The Portal-to-Portal Act stripped employees of the right to be paid for two types of time dedicated to their employers. The first has to do with travel to work. That makes sense, in a way. After all, if one makes the choice to live further from work than his or her co-workers, that does not necessarily mean he or she deserved to be paid more. But the other type of time covered by the Portal-to-Portal Act is more troubling. It includes “activities which are preliminary to or postliminary” to the principal activity of one’s job. The Court interprets that to mean that only job duties that are integral and indispensable parts of your regular job activities are covered by the FLSA. So essentially, even though this employer forced its employees to go through the security screenings, since the job it hired them to do consisted of warehouse work, not going through security screenings, the employees are not legally entitled to pay for the security screenings that happen outside their regular shifts.

Tell Us What You Think

Do you know someone who has to dedicate hours to their job but does not get paid for those hours? We want to hear from you! Leave a comment or join the discussion on Twitter.

Daniel Kalish
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I got carried away in commenting on your concluding sentence: “The Supreme Court…held that the warehouse workers did not have a right to be compensated for their [employer-controled] time.” I think this kind of plutocratic injustice is a function of the pervasive, officially denied, gross and growing labor surplus cum employment shortage in the U.S. and much of the world, based on tidal waves of worksaving technology and a kneejerk employer response of indefinite 40-hour workweek rigidification enabled by progressive… Read more »

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