Is it legal to not pay a W2 employee when performing work functions?

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Is it legal to not pay a W2 employee when performing work functions?

I’m on a W2 with an employer and I work in film/TV and my schedule with this employer is sporadic. I get paid on a guaranteed day rate of 8 hours. When I do work for them, I have to pick up my employer’s equipment at an office and drive to the work location. I am not compensated from the time I leave my residence to the time I arrive on set. My start time is on set. Since I am performing work duties, why is my employer not required to pay me for time spent picking up equipment and dropping it off later. I lose many potential overtime hours because of this. Is this a legal labor practice?

Asked on January 25, 2017 under Employment Labor Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you are hourly, you *must* be paid for all time spent working (and overtime when you work more than 40 hours in a week)--but not for regular commuting-to-work time. In the case you describe, they don't have to pay you for the time spend traveling from your home to the office, since that is considered your regular commute; however, you must be paid from when you get to the office to pick up equipment to when you get to the set/work location, because picking up and transporting equipment from one location (office) to another (work site) is work. The same applies in reverse: you'd be paid to take the equipment back to the office, but not for driving from office home.
If you are paid on a salary basis (same amount every week, regardless of hours worked), they don't need to pay you more base pay for the time described above, BUT if you are not exempt from overtime (note: not all salaried employees are exempt), they still need to track the time and if you work more than 40 hours in a week, pay you an overtime premium for time past 40 hours. The overtime premium is equal to 50% of your effective hourly rate--basically (to oversimplify somewhat), for each hour past 40, you get an amount equal to 50% of one-fortieth of your weekly salary, if not exempt.
To be exempt, you must be paid a salary at least equal to approximately $23,600/year, *and* your job duties or responsibilities must meet one or more of the tests for exemption (the most relevant one for your purposes would likely be the "administrative employee" test). You can find the exact salary threshhold and these tests on the U.S. Dept. of Labor website; compare your salary to the exemption threshold and job to the different tests. If you are not exempt under the law, then even if salaried, you'd be entitled to overtime when working more than 40 hours in a week.
If you believe your employer is illegal underpaying you, try contacting the federal or state dept. of labor to file a wage and hour complaint.


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