Can an employer reduce pay for time that an employee was at the worksite but unable to clock in?

My schedule is 8:30 am – 5:30 pm with an hour lunch break. My co-worker and I arrive at least 5-10 minutes early, but our supervisor is often late. He is the person who unlocks the door to let us in. He told us if we are not clocked in, he doesn’t have to pay us. If he were there to let us in, we would be working. This works out to be a reduction in hours by about 30 minutes every pay period. Should we get paid for the hours we are there ready to work?

Asked on June 26, 2012 under Employment Labor Law, California

Answers:

Cameron Norris, Esq. / Law Office of Gary W. Norris

Answered 8 years ago | Contributor

I hate to tell you this, but the law is very unclear in this area.  The test is whether or not you are "engaged to wait" or "waiting to be engaged."  Really.  I know. 

Central to the test is whether or not the employer is in control of the circumstances.  So in this case, the employer seems to be in control of when the doors are opened.  So, you have a good argument that that time waiting is either time spent "engaged to wait" or "on-call," both of which are considered time spent working under the FLSA. 

You can read more about the FLSA and these terms at the following websites:

http://www.thehumanequation.com/en/news_rss/articles/2010/waiting-to-be-engaged-or-engaged-to-wait-the-fair-labor-standards-act-makes-a-distinction-do-you.aspx

http://www.adp.com/workforce-management/docs/whitepaper/FLSA_White_Paper.pdf

 


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