Work Must Be Paid For–But What Is “Work” And How Can You Prove That You Performed It?

To save money, employers often require their employees to engage in uncompensated work activities, otherwise known as “off the clock” work. For example, employers may refuse to compensate employees for the time they spend working during breaks, traveling during their workday, working after hours or at home, performing pre-shift preparation activities, or putting on and taking off safety or other job-related gear. However, in many cases, an employer’s refusal to compensate employees for their time spent performing such activities constitutes a violation of minimum wage and overtime laws.

The Fair Labor Standards Act requires employers to pay certain types of employees: (a) at least minimum wage for all hours worked; and (b) a premium overtime rate (one and one-half times their regular rate of pay) for all hours worked in excess of forty hours in a work week.

To avoid these requirements of the Fair Labor Standards Act, employers often fail to recognize certain activities as “work,” as that term is defined by the FLSA. Moreover, when faced with a wage and hour lawsuit, employers often argue that employees cannot prove precisely how many hours they worked without compensation, and therefore, are not entitled to be paid for those hours. A recent case from the Second Circuit Court of Appeals, Kuebel v. Black & Decker, illustrates this point.

Greg Kuebel was a salesman and product representative formerly employed by the power tool company Black & Decker. He worked out of his home and traveled to various stores (such as Home Depot) where Black & Decker products were sold. Kuebel filed a lawsuit alleging that Black & Decker violated the FLSA by: (a) not paying him for the time he spent traveling for work, (b) prohibiting him from recording overtime hours; (c) firing him for complaining about not being paid for these additional hours of work. Black & Decker responded by claiming (a) that commuting does not constitute “work” under the FLSA; and (b) that Mr. Kuebel could not prove that he worked the hours for which he was seeking compensation, or that Black & Decker even knew that he was working these hours.

The federal trial court sided completely with Black & Decker. The trial court stated that employees do not have to be compensated for time spent commuting. The trial court focused heavily on the lack of documentation/proof of Mr. Kuebel’s alleged unpaid work time. However, when Mr. Kuebel appealed, the Second Circuit Court of Appeals reversed part of this initial ruling. The Second Circuit Court explained that the FLSA allows an employee to base his or her unpaid hours claim solely on the employee’s own recollection of the amount of unpaid hours worked. If an employee so determines an amount of hours, even if it is only approximate, the employee has met his burden of proof and the employer must either sufficiently refute this evidence or pay the employee. In this case, Mr. Kuebel was able to show approximately the number of unpaid hours he worked. Therefore, he is entitled to a trial where a jury will decide how much, if anything, Mr. Kuebel must be paid for his claimed overtime.

Still, the Court declined to reverse part of the initial ruling. The Court described how the FLSA normally requires employers to pay employees for time spent traveling during the workday, but not for time spent commuting to and from work. And the Court found that Mr. Kuebel’s daily travel to and from work did not occur during his workday, despite the fact that Mr. Kuebel began work at his home every day before commuting to various Home Depot stores to do his job, and ended his workday by taking less than a minute to upload to Black & Decker’s computers information on his company-issued hand held computer. The fact that Black & Decker allowed Mr. Kuebel to perform his at home duties at basically any time of each day or night was important to the Court’s decision.

If you spend time performing work-related tasks for which you are not paid, or if your employer prohibits you from recording actual work time because it is “unauthorized,” you may be entitled to additional compensation. In order to better understand your legal rights, you should consult a St. Louis overtime lawyer.