Pay for All Working Time: The De Minimis Rule Q&A

Q: We have a supervisor who allows nonexempt employees to begin work a few minutes before their shift begins or to continue working “off the clock” for a few minutes after the shift ends to finish up a project. We are concerned that this time is not being properly logged on time sheets and paid as required under wage and hour laws. The supervisor says the time does not have to be paid because it is considered “de minimis” under the FLSA. Is he right?

A: Not if this “off the clock” or extra work occurs on a regular basis. Under the Fair Labor Standards Act (FLSA), nonexempt employees must be paid for all hours actually worked. According to Department of Labor (DOL) regulations implementing the FLSA, if you are aware that nonexempt employees are working extra time, you must compensate the employees, even if you did not specifically request the additional work and even if it is not reflected on their time records. (You will find these regulations codified at 29 C.F.R. §§785.11 – 785.47.)

The supervisor is correct that there is a “de minimis” rule, but he is not applying it properly. The Supreme Court recognized a “de minimis” rule in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946). According to the Court, insignificant amounts of time do not have to be counted as work time, such as when an employee spends a few extra seconds or minutes working.

This rule often has been misunderstood by employers who incorrectly conclude that they can require or permit employees to report a few minutes before their scheduled starting times or stay a few minutes later on a regular basis without paying them for that time. The DOL regulations specifically reject this interpretation. The regulations state that employers do not have to count the time “only where there are uncertain and indefinite periods of time involved of a few seconds or a few minutes duration and where the failure to count such time is because of considerations justified by industrial realities. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee’s fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him.” (This regulation is found in 29 C.F.R. §785.47.) In other words, the de minimis rule should not be used broadly as a device to avoid clocking legitimate working time.

So, if nonexempt employees are regularly working extra time before or after their normal shifts, this pattern would not meet the DOL’s description of “uncertain and indefinite periods” that may be excluded from paid working time. And, the fact that your supervisor is allowing this practice only underscores that it should be paid working time since he is aware that they are working the extra time. Further, you also should make sure your policies are not inadvertently encouraging this practice, such as by indicating that employees are not permitted to begin work more than 15 minutes before their scheduled starting times or to stop work more than 15 minutes after their scheduled quitting times. This type of wording implies that employees may work up to an extra 30 minutes each day without having the time counted for pay purposes.

Accordingly, you should pay for the working time, even if it is not recorded on time sheets, since one of the surest ways to provoke a wage and hour complaint is not to pay employees for time they have worked. Be aware, too, that the extra time may cause the employee to work more than 40 hours in a single workweek and, thus, trigger overtime obligations as well.

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