Preparatory/finishing activities. Activities such as changing clothes and washing up are not considered hours worked under the FLSA, unless such activities are an indispensable and integral part of an employee’s primary activity.
However, state laws may have a different definition of what it means to be “working.” In California, for example, employees are considered to be “working” (and therefore need to be paid) if they are under the control of an employer.
Therefore, employers in some states may be required to pay for the time it takes employees to change into or out of uniforms.
Record-keeping requirements. Both under the FLSA and applicable state laws, employers must comply with technical requirements regarding the maintenance of employee records. However, the FLSA and applicable state law may differ as to how long such records must be retained. Employer violations of such technical rules also are the subject of wage and hour class-action suits.
Given the fact that wage and hour issues are being heavily litigated across the country, it is critical that employers seek legal advice to ensure compliance with all applicable laws.
Emma Luevano is a partner at Mitchell Silberberg & Knupp LLP and represents management in a variety of labor and employment matters, including sexual harassment and other forms of discrimination, public policy violations, wrongful termination, wage and hour issues, and retaliation.