Minimum Wage Violations and Off the Clock Work
On-Call, or Standby Time
A common problematic scenario is unpaid on-call, or standby time. Under California law, neither the Wage Orders nor the Labor Code provide a clear line as to when such time must be compensated. Whether an employer must compensate an employee for on-call or standby time generally depends on balancing several factors relating to the degree that such time is controlled by the employer. If the time is deemed controlled standby, then the employer must compensate the employee for such time. Generally, controlled standby time is when an employee is under such direction and control of the employer that the employee must immediately respond to calls from the employer to perform work. Moreover, an employer has “control” of an employee if the employee’s time is so restricted that the employee cannot pursue personal activities or come and go at will.
Another problematic scenario is called the split-shift, which is a work schedule which is interrupted by non-paid non-working period established by the employer, other than bona fide rest or meal periods. When an employee works a split shift, one hour’s pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment. For example, an employee earning the minimum wage who works eight hours on a split shift is entitled to receive nine times the minimum hourly wage. Employees who are paid more than minimum wage are only entitled to the difference between what they actually earned and what they would have earned had they been paid the minimum wage for their entire shift plus an extra hour.
Time spent traveling to and from work generally is not compensable or counted toward hours of work under state law, but travel time during work or otherwise at the employer’s direction counts as hours worked. Travel time is compensable if the travel involves a special one-day assignment in another city; traveling to another job site during the workday; travel to receive instructions, perform work or retrieve tools; or where the workday begins at home, continues at various job sites, and ends well after a return to home.
Payment by Commission or Piece-Rate
Not everyone in every industry may be paid by commission or piece-rate. Thus, when those employees are not working on a task that generates commission or a piece-rate, there is usually an automatic minimum wage violation, because an employee’s total salary cannot be averaged-out to establish minimum wages. Every hour must be paid.
Some More Common Off-the-Clock Scenarios
- Requiring employees to work extra hours without pay (e.g., server at restaurant clocks out, just as patrons arrive, and the manager asks them to help the newly arrived patrons, without clocking back in, before leaving)
- Requiring employees to perform work before or after they clock in for their shift (e.g., putting on special uniforms before clocking in, and removing uniforms after clocking, aka, donning and doffing)
- Failing to pay employees for the entire time they are performing work, not just the time they are “clocked in”
- Automatically deducting a meal period from an employee’s hours when no meal period was actually taken
- Deducting rest periods from an employee’s work hours
- Requesting that employees work on the weekend without clocking in
- Failing to compensate employees who bring work home and continue to work outside of their “regular” workday