Non-work or Work? When are employees owed pay?

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Published July 2011

A recently filed class-action lawsuit against Huffington Post asserts that up to 9,000 unpaid bloggers for the Web site are illegally being denied pay.

This class-action lawsuit raises an important question for all employers: When is work, work? When is activity – and even inactivity – by individuals work that legally requires an employer to pay compensation for the work?

First, what’s involved in the Huffington Post bloggers’ lawsuit?

Jonathan Tasini, a labor activist, writer and blogger on Huffington Post, filed the lawsuit. He’s seeking $105-million in damages from huffingtonpost.com. Huffington Post has up to 9,000 unpaid bloggers contributing content to the Web site. Tasini, for example, has written at least 216 entries. He asserted that bloggers “have essentially been turned into the modern-day slaves on Arianna Huffington’s plantation.” Huffington Post was started by Huffington and Kenneth Lerer, and now is owned by AOL.

In response to Tasini’s lawsuit, Huffington Post dismissed the lawsuit’s allegations. HuffPost’s position is that the site’s blogs give exposure to the volunteer blog contributors, and the exposure is the bloggers’ compensation.

Are the Huffington Post bloggers independent contractors submitting content to the Web site under some kind of unwritten contract? Are they free-lance writers volunteering content to the site? Are they submitting content of value to the Web site for which they are entitled to be paid?

The issue for the typical employer, though, is: When is non-work and volunteer work actually work for pay? When is it inactivity or activity for which the employer legally must compensate the employee under the federal wage-and-hour law and similar state laws?

Following are examples of sometimes murky “work” situations that require employers to pay wages to employees who are not exempt from the wage and hour laws:

Interns. Taxable, for-profit employers must pay interns when the interns are performing work that benefits the employer and is not primarily an educational experience in the trade the student is studying. The employer must pay an intern at least the minimum wage unless the internship experience passes these six rules issued by the U.S. Department of Labor (DOL):

1. The work performed (the DOL uses the word training) is an extension of a trade studied by the student, or similar to the intern’s school training. Even though the intern works on or from the business’s or organization’s worksite, the work must be “similar to training which would be given in an educational environment.”

2. The work (training) is for the benefit of the student intern.

3. The intern does not replace regular employees, but works under their close observation.

4. The employer derives no immediate advantage from the student intern’s activities. In fact, “on occasion [the employer’s] operations may actually be impeded.” (The intern’s activity is primarily an educational experience and doesn’t significantly benefit the employer.)

5. The intern is not necessarily entitled to a job at the conclusion of the internship. The employer holds out no promise of future employment.

6. The employer and the intern both understand that the intern is not entitled to wages for the time spent in the internship.

  • Volunteers. Taxable, for-profit employers cannot legally employ “volunteers.” In other words, “volunteers” who perform tasks of benefit to the taxable, for-profit employer are workers covered by the wage and hour laws.
  • Changing uniforms or clothes. Also called “donning and doffing.” It refers to the employee’s time spent changing into (donning) and out of (doffing) protective equipment required to do the job. The U.S. Supreme Court ruled in 2005 that donning and doffing that is “integral and indispensable” for the employee to do the job is a “principal activity” and is compensable work time. Pre-donning waiting time is not compensable. Waiting time to doff such protective equipment is compensable time.
  • Rest and Meal breaks. Time spent in short breaks (of 20 minutes or less) is compensable work time. Time spent in longer breaks (such as meal breaks of more than 20 minutes) is not compensable work time, so long as the employee during that time is completely relieved from duty. For example, an employee who is required to answer the telephone during his or her meal break is working during that time and must be paid for that time. (Note: Some states require the employer to give employees paid breaks.)
  • Meetings. As a common-sense rule-of-thumb, ask these questions about meetings that employees attend: (1) If time was taken during the scheduled workday to discuss the topics of the meetings, would my employees be paid for that time? (2) Do the purpose and/or activity of the meetings benefit the employer? If the answer is “yes” to either or both of these questions, then time at the meeting is compensable for non-exempt employees.

The employer need not compensate employees for attendance at meetings, training sessions and similar activities if: (1) attendance is entirely outside working hours, (2) attendance is voluntary, (3) the subject matter is not directly related to the employee’s job, and (4) no productive work (activity that benefits the employer) is performed in the program.

  • Sleeping time. When the employer requires an employee to be on duty for less than 24 hours, the time spent on duty is compensable work time even if the employer permits the employee to sleep during that time. However, if the assigned on-duty time is 24 hours or more, the employee and the employer may agree to exclude sleeping periods of eight hours or less from paid hours worked.
  • On-call time. When the employer requires the employee to remain “on call” on or near the employer’s premises, the time is paid work time. However, when the employer requires the employee to be “on call” while away from the employer’s premises and during time outside the employee’s normal work hours, in most cases the “on call” time is not compensable work time.
  • Waiting time. When the employee is “engaged to wait,” the time spent waiting is compensable. Typically this means that when the employer requires the employee to be at a work site and the employee must wait to actually perform work, the time waiting is compensable. When the person is waiting to possibly get called to work, the time is not compensable. (See “On-call time” above.)
  • Standby time. When the employer engages the person to stand by, to wait to be called for, or to begin work, the standby time is compensable.
  • After hours e-work. (Also called BlackBerry time.) When non-exempt employees check their smart phones for work-related messages, respond to work-related messages, send work-related messages, and otherwise use electronic communication devices and computers for work-related activity outside their normal work-for-pay hours, the time they spend on work-related e-activity is work for pay.
  • Travel and Portal-to-Portal time. Some travel time to and from work is paid time. Some is not. To know if your employees’ travel and portal-to-portal time is compensable, check with your legal adviser and with the U.S. Department of Labor’s Web site and your state’s labor department Web site. Here are three typical examples:

Day trips to another city. Excluding the employee’s normal commuting time each day, the employee’s time spent traveling to and from another city during a normal day is paid work time.

Travel between job sites. This also is called “all in a day’s work” travel time. It’s time the employee spends as part of their principal job activity traveling from job site to job site during a normal work day. Such travel time is paid work time.

Overnight travel away from home. The employee’s time spent traveling away from their home is paid work time when the travel time cuts across the employee’s work day. (Time spent traveling away from home outside the employee’s regular work hours, on a plane, train, boat, bus or car is not paid work time.)