Arriving Early

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Question

We have a question about our nonexempt employees. We require them to arrive 10 minutes before their shifts start so they’re ready to go as soon as their shifts begin. They don’t really perform any “work” during these 10 minutes; they just hang around and wait for their shifts to begin. Our employees have been complaining that we should pay them for this time, since we require them to be here. Do we need to pay them for this time, since they aren’t actually “working” yet?

Answer

The federal Fair Labor Standards Act defines the term employ to include the words suffer or permit to work. Suffer or permit to work means that if an employer requires or allows employees to work, they are employed, and the time spent is probably hours worked. An employer may hire a person to do nothing or to do nothing but wait for something to do or something to happen. A person hired to do nothing or to do nothing but wait for something to do or something to happen is still working.

Thus, as a general matter, if an employer requires employees to report to work before the start of their shifts, the employer might create a duty to compensate employees for this time. Additional federal, state and/or local laws may also apply. Employers wondering whether they owe employees compensation for any specific amount of time that they were at work (including before the start time of their shifts) should contact local counsel for a specific legal opinion.