Under the Florida Minimum Wage Act and the federal Fair Labor Standards Act (FLSA), employers must pay covered employees for all the “hours worked.” Wage payment must follow applicable overtime and minimum wage rules.
The FLSA defines the term “employ” to include the term “suffer or permit to work.” This term means that if an employer covered by FLSA requires or allows covered employees to work, the time spent by them working is generally compensable “hours worked.” This includes work performed over 40 hours (for which overtime must be paid to covered non-exempt employees) and time worked “off-the-clock” (when an employee continues to work at beyond regular working hours to finish a task.) Employees must be compensated for all hours of work performed, whether the employer requested the work or not.
Specifically, under Section 778.223 of the FLSA regulations:
“An employee must be compensated for all hours worked. As a general rule the term “hours worked” will include: (a) All time during which an employee is required to be on duty or to be on the employer’s premises or at the prescribed workplace and (b) all time during which an employee is suffered or permitted to work whether or not he is required to do so. Thus working time is not limited to the hours spent in active productive labor, but includes given time by the employee to the employer even though part of the time may be spent in idleness. Some of the hours spent by employees, under certain circumstances, in such activities as waiting for work, remaining “on call”, traveling on the employer’s business or to and from workplaces, and in meal periods and rest periods are regarded as working time and some are not.”
Therefore, the following time may be considered compensable hours worked, depending on the circumstances:
- Waiting time (e.g., when firemen wait in a fire station for an alarm, or when a messenger waits to pick up a package)
- Time on-call (e.g., employees who are required to stand-by at their employer’s premises until needed)
- Time spent in job-related lectures, meetings and training programs
- Job-related travel (e.g., during the work day, from one job site to another, travel away from home when it cuts across the employee’s workday)
- Rest and meals breaks, including and work during breaks
Regarding time “on-call,” if employees must remain “reachable” but are not confined to a particular place, and they may come and go as they please, the hours spent “on call” are not considered as hours worked. However, if the employer places restrictions on employees, such that their time is not really their own to control, they will be entitled to be paid for hours worked. For example, factors considered in this determination may include: if the employee is required to remain within a specified distance from the workplace, required to arrive to work quickly when called, limited from participating in certain activities during their time off, such as drinking, etc.
Employees may collect wages due for all hours worked, along with penalties, if they are successful in an administrative claim or lawsuit for unpaid wages. Employers should engage competent legal counsel to prevent costly wage recovery litigation, and ensure their hours-worked policies are not overly restrictive. Employees who believe that have not been compensated properly should consult a knowledgeable attorney to help them determine if they have a case, identify and preserve any necessary evidence to support their claims, and evaluate any other claims that may be present in their situation.
Whether you are an employer, employee, or independent contractor, the Orlando employment law attorneys of Burruezo & Burruezo can assist you in assessing an hours worked situation and offer competent legal representation, if necessary. Click here to contact an attorney now.
 For more information on employee coverage, see: FLSA Enterprise and Individual Coverage, Exempt or Non-Exempt? Employee Classification Under FLSA, Overtime Pay, and Minimum Wage blog articles.
 See Overtime Pay blog article for information on when overtime pay is due.
 See Breaks and Rest Pay blog article for additional information.
 See Wage and Hour Claims blog article for additional information on claims and penalties.