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Who pays for waiting?

Posted by Elaine Varelas  November 4, 2009 10:00 AM

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Q. To make ends meet, I work part time at a retail store. The store closes at one time, and the employees are all scheduled until half an hour later. We never end up being allowed to leave until half an hour (or later) after our scheduled time. Also, when we are told to punch out, we’re not allowed to leave the store until the bosses come down to let us out and check our bags for theft. This is often at least ten minutes or more of unpaid time. Obviously, 10 minutes isn’t going to make a big difference, but I feel that once I punch out, I’m on my own time, and should be free to go home, or should be paid to stay the extra time. Is this practice common and acceptable?

A. Time really is money, especially as employees are often running from one job to the next. Employees in many industries and positions are looking for clarity about what is paid time, and what is unpaid time. Many positions involve time that is considered "waiting time" - whether it is a truck driver waiting for a truck to be loaded, or your case where you are waiting to be cleared to leave.

The issue of uncompensated time is often a sticking point in employee relations issues, and employers are encouraged to make sure explanations about compensation for these "soft" minutes are well understood by employees and managers before the issue is escalated to a legal issue.

For a better understanding of employee compensation in this kind of situation, I consulted David Conforto, Founder of Conforto Law Group, P.C. a Boston-based boutique firm concentrating in all aspects of employment law and dedicated to the representation of employees. Attorney Conforto said: "The answer to this question hinges on the definition of “work.” Under the Fair Labor Standards Act (“FLSA”), you must be compensated for activities performed either before or after the regular work shift if those activities are an integral and indispensable part of the principal activities for which you are employed. In general, if the employer requires you to be at work, you’re technically working and should be compensated for your time, even if your time is spent waiting."

Certain union employees may find this is not the case, based on what was negotiated. Raising the issue with a human resources representative might prove helpful. The human resources staff may be able to encourage the managers to be more available to help you punch out and leave immediately. Human resources can also explain to employees and managers, what time employees need to be compensated for, and how to ensure that happens.

If you are considering filing a claim under FLSA, Attorney Conforto suggests you notify the Secretary of Labor to gather more information before filing. Under the FLSA, you generally have 2 years to file a claim in court, unless the employer’s decision to not pay you was willful, in which case you will have 3 years. In some cases, especially where the rights of numerous employees are at stake, the Secretary of Labor may bring a suit for back wages on your behalf.

Under the Massachusetts Wage Act, an employer that fails to compensate employee for hours worked will also face liability. If you believe this to be the case, you must first file with the Attorney General’s Fair Labor Division. You have 3 years from the date of each unpaid wage violation to file in court. Conforto comments, "Once again, where numerous employees are affected, the Attorney General may intervene to help you recover the wages to which you are entitled."

This blog is not written or edited by Boston.com or the Boston Globe.
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