This waiting around thing, this is what she’s told. She’s asked to clock out for a break and when she comes back to clock in quite often they’ll tell her to take an hour, then another. Otherwise they’ll have her work about another hour and send her home. I know they’re only working her during the biggest rushes, and trying to drag out a lunch and dinner rush. Tacky but they’ll do anything to save a penny I’m sure. It’s bad enough they only schedule her for three shifts at six or fewer hours but she rarely even puts in two by the time she leaves.
There are both state and Federal wage and hour regulations.
Something I should mention is I researched this long ago out of a mixture of curiosity and concern that my business might accidentally run afoul of any Wage & Hour regulation. The penalties for violations can be substantial.
Unfortunately after discussing “in passing” with lawyers, doing research on U.S. Code, and doing research with the Federal Department of Labor I found that it is very, very difficult to get a solid answer. Unlike many things it doesn’t appear the regulations and interpretations of waiting time, on-call time, and what must be compensated work time are clearly laid out *anywhere. *Instead it seems to be governed by “interpretive bulletins” and other such things issued by the DOL, and if they are indexed anywhere for easy searching and browsing I have not found them.
That being said enough information is provided through the DOL (at least the Federal DOL) that you can have a generally decent idea as to what is work time and what isn’t, but the problems mentioned above also mean that sometimes you could get investigated over a specific situation which had never been specifically handled before and how it would be handled administratively by the Wage & Hour folks would be based on how they interpreted the law (and if you disagreed with their interpretation you would then have to go through lengthy appeals and eventually actual litigation.)
One major, general thing is to keep in mind the phrase suffered or permitted to work. As an employer it doesn’t mean jack shit what I wanted an employee to do, if I allowed them to do work, I have to pay them for work, period. If anything I allow them to do is definable as work (even if I didn’t believe it was compensated work time) then they must be paid for the work.
As an example let’s say I have a policy whereby any overtime must be approved by an employee’s supervisor prior to the overtime work being performed, and further this approval must be signed by the supervisor. Let’s say that it’s near end of business on Friday and things are busy and people are “putting in some extra work” to get a project finished. Let’s also say a non-exempt employee of mine ends up staying until 8 PM when his regularly scheduled work day ends at 5 PM.
Now, let’s also say I was really busy and I wasn’t counting hours or minutes, I didn’t realize my employee was working overtime. I did not want him to work overtime. He did not get approval to work overtime, if he had asked for approval to work overtime it would have been declined. So I didn’t necessarily permit it, but I suffered it. Meaning I let it happen and did nothing explicitly to stop it from happening. The fact that he violated company policy in working past quitting time by not getting a signed and approved overtime approval form filled out is irrelevant to Wage & Hour, he must be paid his hours. Now, for violation of company policy he can be reprimanded under our disciplinary policy, but we cannot not pay him.
That being said, if there is a “period of inactivity” at the business and an employee reports to work and is told immediately upon arrival “we do not need your services” then no work time is viewed to have occurred by Wage & Hour (at the Federal level.) However if they are not immediately told upon arrival, any time between their being sent home and the moment they clocked in is work time, and must be compensated.
Likewise, if they show up and there is no work to do, and they just hang out waiting for work to do, and we do not send them home, that is waiting time which must be treated as work time. Examples given by DOL:
-A fireman sitting in a firehouse playing checkers is engaged to wait. They are not actually working, but they are engaged waiting for work, meaning they can’t leave, they can’t have free use of their time. They are paid their regular wage.
-A secretary reading a book while sitting at a reception desk, when she has no assigned tasks. Again, she’s engaged to wait, she isn’t permitted freedom of movement or freedom to spend her time in any way she chooses. She isn’t strictly speaking working, but she is waiting and is engaged to wait and must be paid.
If I own a Sonic Franchise and an employee comes in and I tell them “we’re not busy, I don’t need you. You need to sit and wait for the possibility I need you and if so you will be called in to work, if not you will be sent home at some point.” That isn’t probably viewed as wait time because the employee isn’t “on the clock.” What it is though, is on call time. According to DOL, if the employee is required to remain at the work place while on call, on call time must be paid. If they are required to remain within a certain distance of the work site it is also specifically required this be paid on call time.
There is a difference (at least in my interpretation) of wait time and on call time. Wait time that is compensated work time is paid at the employee’s regular rate, and I do not believe you are permitted to pay them less than their regular rate. On call time that is compensated work time may be paid at a lower rate than the employee’s regular work time (not lower than minimum wage.)
While outside the scope of the OP’s question, teleworkers have some unique situations. If you are a Sys Admin that works 100% from home, obviously your normal home work hours are regular work time. If you are a Sys Admin that works 100% from home, and you also must be on call at all times, whether that on call is compensated on call times is basically left by the DOL up to the discretion of the “employer employee negotiations.” Its only guidance seems to be that as long as the employee can enjoy most of the freedoms and activities of their normal life it is permissible that the teleworkers on call time not be counted as compensated on call time.
However note that the moment you “get a call” you aren’t “on call” time anymore and you are on working time. In the specific instance of sys admins I’ve noticed many of them are classified as exempt employees and thus aren’t eligible for overtime and only make a fixed salary so the issue is moot (I’ve also heard it argued they don’t really qualify as exempt employees but that’s even further outside the scope of this thread.)
Back to the specific example at Sonic, if investigated the employer if smart at all will say this:
“I did not require any employees to remain in the parking lot. I regularly inform employees when we no longer need them due to varying levels of activity that they are dismissed from work, I tell those employees that if they so choose they may remain in the general area so that I can easily call them back to work if they would like to work some more hours. However that is only for their convenience, and if they did not wish to wait around for that opportunity it was entirely within their freedom to leave as I never required them to remain on or near the premises of the work site.”
So essentially his argument would be it wasn’t on-site on call time because he never asked them to stay, and in fact he was just saying “if you want to hang around you might get some more work today.” He can say that because obviously the communications between him and the workers mentioned in the OP is not documented in any way and it will just be his word against the employees. How the above scenario would play out if Wage & Hour believed his story, I do not know. They could still find that he suffered them to be on call and be required to pay them for that time, but in such a specific situation it’s impossible to say for certain.
They can tell her to clock out, but they cannot tell her what to do while she’s clocked out. If she’s required to hang out close to the restaurant, in case they need her, she’s entitled to be paid.
http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.2.44&idno=29#29:3.1.1.2.44.3.433.5
An employee who is required to remain on call on the employer’s premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. An employee who is not required to remain on the employer’s premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. ( Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))
If she’s being required to clock out for a break of less than 20 minutes, that’s also a violation.
Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. ( Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945))
Go to my link, and copy various portions of it as you see fit. Print several copies. Drop into mailbox from another part of the city, to both the franchise and the parent company. Watch the shit fly (from a safe distance).
IANAL. Even if I was, I’m not YOUR lawyer, or your daughter’s lawyer. Is she a minor, by the way? States usually have rules about minors, and what hours they can work, and their breaks.
I didn’t see this most recent post before I posted.
It definitely sounds like she isn’t engaged to wait, because if she’s told to “take another hour” I assume that means she is on break and she can walk around and whatever she wants freely. If she’s expected to keep coming back again and again to see if they want her or if they want her to take “another hour” then I think that starts to sound like on call time and since she has to periodically come back to check on things it sounds like on call time that must be compensated.
Also everything I was talking about above was Federal Wage & Hour regulations. It *applies *in all the States. It is not enforced by the DOL, though, at least not primarily. If an employee contacts the DOL with a Wage & Hour violation they will be directed to their State Wage & Hour bureau. So while I mention the Federal guidelines due to their universal applicability, the actual primary contact for enforcement will be your State DOL and its Wage & Hour division. That of course means any additional regulations above and beyond the Federal regulations will apply. It also means it will be up to the interpretation of the state W&H people as to what will happen (and I assume there is some process by which a person who feels the state W&H people made the wrong decision can claim it was in violation of the FLSA’s W&H provisions but I have no idea the mechanism.)
This is not necessarily true. You can require employees to clock out for shorter than 30-minute meal breaks under certain circumstances:
Another thing is, during the corporate inspections if they were required to clock out for two hours and then immediately required to clock back in when the inspectors left, that is engaged to wait and that is absolutely work time. I say that because they are specifically required to wait there until the inspection is over. But even if they were just required to physically check back in every so often, that would still be a form of on call time and still compensated time. Only if they were allowed to leave and only required to leave a place where they could be contacted and not required to remain within a certain proximity of the location could it be legitimately unpaid time.
If during the “other times” they are sent to the parking lot if management is in the habit of coming out and saying “just go home” it means it is extremely clear and evident management knows they are there and is not only permitting it and suffering it but arguably requiring it, so there’s a good argument their entire time outside is work time. (The difference between wait time treated as work time and compensated on call time is mostly irrelevant for a Sonic employee who probably makes minimum wage in either case.)
I mention that because in the unlikely event you consider it worth your time to contact Wage & Hour those points can be key in how they will analyze the situation. If corroborated it would also undermine the Sonic management if they try to give the “cop out” explanation I hypothesized about above.
Good night this is confusing! But I thank you all for taking the time to sort this out.
Ditto. The closest to this I can come to is working split shifts at restaurants, where you work the busy time, leave for a couple of hours and come back for the next busy time.
And I understand it’s her first job, and perhaps it’d be to the benefit of other folks working there to take this all up with the state, but there are entry-level jobs out there, even for teenagers, that don’t operate like that. Sounds like she just pulled a bad one this time; definitely worth looking for another.
I also highly agree with the notion of taking it up with Sonic, Inc. Or whoever owns the franchise; sounds like the place itself is pretty sketchy.
Just to add as a suggestion: My sister worked at a Dairy Queen when she had her two young children. Not only did they pay a little higher than regular fast food jobs <significantly higher at the time, actually> but they also subsidized day care and had some health insurance benefits, things absolutely unheard of in that day for that kind of job, and probably unheard of now.
I realize that franchises can kind of do what they want individually to a certain extent, but if there’s a Dairy Queen nearby, I’d recommended hitting one up for a job. 
I don’t have much to add to the excellent posts above, but I’ll join the chorus of telling them to go pound sand if they want her to be on the premises and not paid. Excluding previously agreed upon on-call agreements, it’s either her time, or it’s not.
If anything, because she is young and this is her first job, I think it is especially important to teach how to stand up for herself in a mature fashion and recognize when she is being taken advantage of.
- very glad my only job in food service treated me well
If you are “on Call” federal labor laws require you to be justly compensated. If you are required to stay on property and can not leave you are not on call, you are on the clock.
Two choices. 1 go to state labor board and make a complaint. Or 2 keep track of the time she is required to sit around off the clock. After a few months demand the pay and if they refuse go to the labor board.
This company needs to be taken to the labor board.
Is the income needed that badly? Can you afford for her to do something actually useful? Take more classes? Volunteer? Some sort of project? Unpaid internship? My skimming of the thread didn’t reveal if she’s in high school or college. The older she is the more potentially damaging a waste of time this is. There are many options that could be extremely beneficial to her future career and the overall financial viability of your family if the family can afford to not take a short-sighted approach on the manner.
If she’s going to stay on this job, she should keep careful written records and report the company. If she clearly is not required to be around, she should leave. If she’s going to wait, it need not be a time-waster; she can do homework in the car or apply for grants or something.
For the record, this isn’t her first job. She’ll be 22 in two weeks and has worked steadily since she was 18. She lost her last job, which oddly enough was even more sketchy, at a liquor store. I was never comfortable with her working there but at least she had regular but workable hours. The reason she took the job at Sonic was because the day after she lost the other job her cousin got her this job. She wanted something that would work with her upcoming school hours and the manager said she had no problem working around them (who knows if this is even true though?)
She’s keeping her stubs from the time clock to show how few hours and how odd they are. Some days she’s had six stubs from clocking in and out so much. And this is like in a six hour period where she clocked less than two hours total!
From what I’m reading, it basically all boils down to “If the employee does not have free and unrestricted use of their time, they must be compensated.”
I wanted to thank everyone for their opinions and advice on my mom’s question.
This is not my first job but my third, and I hope to get a better job soon.
I worked a minimum wage job in high school, and in addition to the regular schedule, you were also “on-call” two additional nights per week. On those nights, you were required to call the store at 4:30 and they told you whether to come in or not. If you came in, you obviously got paid, and if you didn’t, then you did not get paid.
At the time that seemed extraordinarily unjust to me because even if I was told not to come in, I had still sacrificed that night. I couldn’t make any plans to do things with friends, buy tickets to an event, etc., because I might get called into work.
I thought at the time that should have been illegal, but as I read this thread, I guess it isn’t.
They’ve lied about everything else, they’ve lied to their HQ; they’re lying about this. It’s not worth her staying.
(Sarcasm mode) why shouldn’t it be legal, the have to make $$$ too. :rolleyes:
Not true you can be required to be on call and not be compensated. Federal laws don’t always apply. As I pointed out in Illinois many companies require their employees to hold beepers or cell phones 24/7 and they are always on call. Trust me I checked on this, I hated being on call.
Unless the person was referring to being required to be on call and ALSO required to be on property as well. Then I would think that you must be paid.
Again you must check with your STATE. Federal guidelines are so often misinterpreted they are worthless.
The best way to handle and question like this is go to your states Dept Of Labor website and look for “Wages and Hours.” Shoot them an email. They will answer your question.
I found California probably has the toughest laws that are most friendly to employees, so if you live in California it pays to check into it, 'cause California labor law is very different.
Ironically states like IL and MI which were former heavily unionized have the weakest labor laws because they were so heavily unionized that no labor laws were ever passed, 'cause the unions were protecting them. Now that unions are weaker you’re stuck with weak labor protection.
But often you find weird laws. For instance, in IL there is no law for breaks regarding employees. So your employer while having to give you a lunch break doesn’t have to give you an additional break in IL.
EXCEPT, Housekeepers in legally designated hotels in counties over 3,000,000 people, get two 15 minute breaks per 7 hour shift. So basically this applys to Cook County only. But it’s odd how a law like that gets passed ain’t it.
So the long and short is check with “Wages and Hours” of your state’s labor dept. I’ve been through an audit by them and it’s brutal, and no one wants that.
Chiming in to agree that this sounds illegal. If you’re required to be do anything, you’re required to be paid. This is downright abusive. I have worked with excellent bosses in the food service industry who made a strong point of reminding us that things like company meetings, conducted well outside of normal hours, were also paid time.