CHAPTER 2: PUBLIC PERCEPTIONS OF WAGE AND HOUR RIGHTS
C. Compensable Time Questions
72 Brett works full-time as a waiter at the diner and earns tips.
[A, B]: The diner does not pay Brett a base wage.
[C, D]: The diner pays Brett a base wage of $2.50 per hour.
[A, C]: On average, Brett earns $4 in tips per hour.
[B, D]: On average, Brett earns $20 in tips per hour.
Is Brett legally entitled to any additional wage from the diner beyond his tips?
• Yes
• No
This question on tipped minimum wages had four variations, three of which required the employer to pay the worker a higher base wage, either because the worker was not receiving a base wage at all, or because the base wage and the tips did not meet the federal minimum wage of $7.25 per hour. The fourth variation, where the worker has a base wage of $2.50 per hour and earns $20 in tips per hour, is not legally entitled to a higher base wage under federal law. Many states have raised their tipped minimum wages such that the worker in this variation would also require a higher base wage under state wage and hour law. The survey results section compares respondents in these states to respondents in states where the state tipped minimum wage is still
$2.13.
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Compensable Time Question 1: Justin’s 30 Minutes by Work Activity
One common compensable time dispute is over donning and doffing. Employees that are required to put on and take off, or don and doff, clothes that are necessary for the job are
sometimes not paid for that time. While this can be a trivial amount of time for some workers, for workplaces where occupational safety and health regulations require extensive safety gear for employees, this time quickly adds up. If workers are not paid during this daily routine, they lose significant pay. Federal courts tend to decide that time spent donning and doffing is compensable only if there is a significant amount of time, and thus significant amount of pay, at issue.
A similar compensability question arises for time spent waiting to begin or end work.
Like employers requiring workers to actively don and doff clothes, sometimes employers require employees to passively wait before entering or leaving a workplace, usually for security
screenings. The Supreme Court found 9-0 in the 2014 case Integrity Staffing Solutions, Inc. v.
Busk that this type of waiting time was not compensable because the waiting was not
indispensable to the employment.32 While the waiting time was required by the employer, the indispensability analysis tests if that waiting time is indispensable to the job, not whether the employee can forgo the waiting time.
This survey tests whether respondents view these two forms of waiting time differently.
In the question below, the worker either dons and doffs for 30 minutes, or waits in security screenings for 30 minutes. In either case, the worker is unlikely to be compensated by a federal court, but respondents may view the situations differently.
32 574 U.S. 27 (2014).
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[A]: Because Justin is responsible for packaging hazardous chemicals, Big Box Warehouse requires Justin to wear safety gear, including a protective suit, gloves, and goggles. Big Box Warehouse requires the safety gear to remain on the premises. Every day, Justin spends 15 minutes putting on the safety gear before work and another 15 minutes taking it off after work.
[B]: For safety and theft reasons, Big Box Warehouse requires workers to pass through a security checkpoint before and after they leave work. At the checkpoint, workers pass through a metal detector while security guards check their bags. Every day, Justin spends 15 minutes waiting in line to pass through the checkpoint before work and another 15 minutes waiting in line after work.
Is Justin legally entitled to earn his $15 hourly wage for the 30 minutes he spends [A: putting on and taking off safety gear before and after his work / B: waiting in line before and after his work]?
• Yes
• No
Compensable Time Question 2: Justin’s Lunch Break
One other common question on compensable time surrounds time spent working during employee breaks. Employees are not guaranteed pay during meal breaks. But often employees work during those breaks anyway. The U.S. Department of Labor consistently states that only
“bona fide” meal breaks are non-compensable. For a meal break to be bona fide, the employee must be completely relieved of work responsibilities (29 C.F.R. 785.19). Even inactive work duties, like waiting on-call to answer phone calls, may disqualify a meal period from being a
“bona fide” break. (U.S. Department of Labor 2022).
Justin gets a one-hour lunch break every day. Most days, Justin eats with coworkers outside. On Wednesdays, it is Justin’s turn to answer the phone in the front office during the lunch break. Typically, each Wednesday, Justin answers [A: only one phone call, lasting 5 minutes / B: four to five phone calls, which usually takes 40 minutes]. During the rest of his Wednesday lunch hour, Justin eats and watches T.V.
Is Justin legally entitled to earn his $15 hourly wage during his lunch break?
#1. Yes, every day of the week
#2. Yes, for the full hour he sits by the phone on Wednesdays
#3. Yes, only for the time on Wednesdays when he answers phone calls
#4. No
The worker in this question was paid hourly and answered phone calls once a week during his lunch break. The variations changed how much time he spent answering calls, but in
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both cases, the correct answer is that his entire Wednesday lunch hour is fully compensable. This is because his meal break is not bona fide, as he is not completely relieved of all work duties.