The federal Fair Labor Standards Act (“FLSA”) and the New Jersey Wage and Hour Law (“NJWHL”) protect the wages of New Jersey’s hourly workers. They do this by requiring employers to compensate hourly wage employees for each hour worked at a minimum wage rate (in New Jersey the minimum wage rate in 2017 is $8.44/hour), and to pay overtime wages at 1.5 times an employee’s regular hourly rate for each hour worked in excess of 40 hours in a workweek. This means that an employee is not permitted to work any time “off the clock” without pay even if the employee does so willingly.
Any time an employee is working for the employer he or she is required to be paid even when the employer did not ask the employee to work that time. For example, if the employer asks an employee to do a job and it takes the employee an extra hour to finish the job properly, the employee is entitled to overtime pay for that hour – even if the employer has a policy forbidding overtime pay. And if that hour means that employee has worked 41 hours in the workweek, the employee is entitled to 1.5 times her regular hourly rate for working that extra hour even if the employer has a policy forbidding overtime.
If an employee’s job requires him or her to wait around for an assignment, they must be paid for that time spent waiting. Indeed, even if the job is not to wait but merely to be “on call,” the time the employee is on call is to be considered work time warranting compensation. For example, if a job requires an employee to be available to respond to a security call, the time spent being on call must be compensated by the employer and can be calculated as part of work.
What constitutes an employee being on call depends on what restrictions the employer places on the employee during the on-call period. To determine whether an employer must pay an employee for on-call time, courts use a four-factor test: (1) whether the employee may carry a beeper or leave the workplace, (2) the frequency of the employer’s call and the nature of the employers demands, (3) the employee’s ability to maintain a flexible on-call schedule and switch on-call shifts, and (4) whether the employee engaged in personal activities during the on-call time.
There are some limited occasions when an employer can be exempt from paying for employee activities. For instance, while a lunch break shorter than 20 minutes must be paid for by the employer as work time, an employee break of a half an hour or longer is generally not considered work time. Also, travel time to and from work is usually not part of the work hours. However, if the employee needs to travel to a work location other than their usual place of employment, then the employee must be compensated for the extra travel time (compared to the employee’s normal travel time to their job). Also, where the employee is away on overnight travel, only the usual work hours are counted as work time. When the employee’s job is to travel between different locations, travel time is considered part of the employees work time. For example, a delivery driver must be paid for the time traveling and not only the time physically making the deliveries.
Finally, an employer does not need to compensate an employee who does a voluntary activity which benefits the employer (e.g., attends a lecture) if that activity does not occur during employment hours, is not job related, and the employee is not performing any other work for the employer during that time.
If you have not been paid for all time worked and/or are not being paid an overtime rate for all hours worked in excess of 40 hours in a workweek, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law LLC, we are well experienced in handling FLSA and NJWHL based legal claims.