HOURS WORKED
What hours must my employer pay me (wages)?
All time spent by an non-exempt employee performing activities which are job-related is potentially hours worked. The phrase that federal wage and hour uses is time the employer “suffers or permits” the employee to work. This includes the employee’s regular hours recorded on the time clock or time reports. It also may include “off the clock” time spent performing job-related activities (which benefit the employer). If an employer knows the employee is doing work (or could have found out by looking), and lets the employee do it, the employer likely will be responsible to pay wages for all hours worked.
Oregon work time includes the federal suffer or permit standard. However, Oregon goes beyond suffer or permit and includes both “includes both time worked and time of authorized attendance.” ORS 653.010. Oregon explains further explain what work time is helping employers and employees know what time must be paid. BOLI (Bureau of Labor and Industries) created regulations to help. For instance, “Work not requested, but suffered or permitted is considered work time” and time the employer “has reason to believe that work is being performed” must be paid. OAR. The employer is even required to ensure that employees do not perform work if they don’t want to pay for it. With only a few exceptions, all time an employee is required to be at the premises of the employer is work time. Fairly recently, the Oregon Court of Appeals clarified just this point. In Migis v. Autozone, the Court found that employees were entitled to pay because they had to perform work by setting the alarm after clocking out or before clocking in. Other common situations that employers do not pay wages for include time the employer believes is nonproductive time. For example a gas attendant waiting for cars to pull in must be paid wages for this time.
Common errors made by employers in paying for time worked:
1. Volunteer Time
Generally speaking, Oregon employees cannot volunteer. The same statute regulating what work time must be paid and defines the word “employ” addresses this issue. The definition of employ includes suffer or permit to work. However, it further states that employ: “does not include voluntary or donated services performed for no compensation or without expectation or contemplation of compensation as the adequate consideration for the services performed for a public employer referred to in subsection (3) of this section, or a religious, charitable, educational, public service or similar nonprofit corporation, organization or institution for community service, religious or humanitarian reasons.” ORS 653.010(2). The lawyers at Schuck Law interpret this statute to mean that one cannot volunteer to work for any company that is for profit. Even where one works for a non-profit charitable organization, it also depends upon what work is being performed. For instance, an accountant for a charitable institution who is paid hourly generally cannot volunteer extra hours. However, it gets less clear when the same employee volunteers to work the the soup line with other public volunteers.
2. Lunch Breaks
Lunch breaks are required in Oregon when an employee works more than six hours. The employer must provide at least 30 minutes uninterrupted lunch break to be able to deduct the time from the lunch break from the wages. OAR 839-020-0050. Oregon law surrounding the lunches gets confusing. If the lunch is less than 30 minutes in length, the regulation says that it must be paid. Read literally, this means that if you take a 29 minute lunch, the employer must pay your wages for the entire lunch break, not just the one minute that you worked. As discussed below, electronic time clocks make tracking such pay discrepancies much easier. The employer own time clock shows where additional wages are due. Many employers choose not to pay for the time worked during your lunch, or for short lunches. They try to blame the employee for the short lunch break. This issue is being litigated regularly, especially against large factories, hospitals, and stores. Recently, the Oregon Bureau of Labor and Industries fined a major hospital for failing to provide meal periods as required by law. Fine. The lawyers at Schuck Law believe that this extremely suitable for class action treatment because the electronic time clocks show which lunches were less than 30 minutes in length. Class actions allow one or more representatives to bring claims for hundreds or even thousands of employees all in the same case. Shorting meal periods can also result in thousands in penalties. Lunch Page.
3. Travel Time
Travel time is another type of work time which employers often fail to correctly pay all wages to their employees. BOLI has listed very specific types of travel time which are considered work time to help employers know when wages must be paid for travel time. For instance, employees are entitled to be paid for travel time between job sites during the normal work day. Also common, is when an employee is required to go to the office first, receive instructions or pick up materials, then go to a job site. This work time should be included in the employee’s pay. Employees required to travel more than 30 miles from their normal work location, may also be entitle to be paid for travel time. There are many more situations that fall outside these few explanations, the lawyers at Schuck Law will help you weed through the law and determine whether your travel time should be paid and if so, whether you can sue for the unapid wages and receive penalties. Wage page.
4. Training Time
Whether training time is work time under Oregon law, and must be paid wages as hours worked, depends upon multiple factors. Rule. To determine whether the employee must be paid wages for training time, the Oregon employer must be able to prove all the following: First, to exclude training time from work time and not pay wages the employer must prove that the training occurs outside the employee’s “regular working hours”. Second, to exclude training time from work time and not pay wages the employer must prove that the attendance is truly voluntary. Not that “wink wink” type of voluntary employees see all the time, but truly a voluntary act. Third, to exclude training time from work time and not pay wages the employer must prove that the training “is not directly related to the employee’s job”. This means that a truck driver attending a driver safety course generally must be paid. Fourth, to exclude training time from work time and not pay wages the employer must prove that no productive work is performed by the employee during the training. If the employer cannot prove all four of these elements, then the training time is must be paid just like the rest of the employee’s work time.
5. Electronic Time Clocks
Historically, time clocks have been used by employers to fulfill the requirement that they track all the time their employees work. Some employers use them solely for this purpose, while others, use them to steal wages from employees. For instance, employers try to get employees to perform work while off-the-clock to avoid paying wages for all time their employees work. With the advent of electronic time clocks this theft of work time is made even easier. Modern electronic time clocks are simply computers. Employers can program the electronic time clock to reduce wages automatically and they can also be utilized to change the punch times. Both uses steal work time from the employee resulting in less wages being paid.
When electronic time clocks are programmed to change your punch times, you may not even realize it is happening. For instance, if you are scheduled to work at 10am, but when you arrive work it already busy, the employer could ask you to start early. Some electronic time clocks are programmed to ignore any time you work before you were scheduled start of your shift. This is true regardless of whether your manager told to start your shift early.
By altering your punch-in and punch-out times electronically, the number of hours you are paid is reduced to a number that is lower than the hours you actually worked. Obviously, this causes you to earn less money on your paycheck. Usually, these alterations, whether manually performed by your manager or programmed into the time system, are fairly small. On first blush, you might believe that programming a time clock to delete five minutes is meaningless. However, when you realize that your recorded work time was reduced 5-20 minutes per week, and you have already worked 25 weeks, you realize that you are due almost a full day’s wage. Then if you figure out how many employees the employer has, you can see why this is so profitable for employers. For instance, in the same example, with 100 employees, you are looking at 100 days of free work. Even at minimum wage, the employer in this situation likely saves over $6,000. The more employees they have and the more work time they take at any one time, the more the employer can save.
Employees subject to such wage theft are likely due the unpaid wages, plus a civil penalty, and if the employment has ended penalty wages. These penalties can exceed several thousand dollars each. Always track the time you work and the time shown on your paycheck stub to determine whether you were paid for all the time you worked.
Can my employer make me work without pay?
No. Employees must be paid for all work time under ORS 653.010. Where an employer fails to pay all wages on payday, it may have violated minimum wage laws, overtime laws, and if employment has ended, violate the timely payment of final wage laws.
Wage Claim Attorneys
The Oregon wage claim attorneys (lawyers) at Schuck Law, LLC focus their law practice on wage claim lawsuits. Our Oregon wage claim attorneys regularly prosecute Oregon wage claim lawsuits for employees who were not paid all wages, or were not timely paid all their final wages at the end of their employment. In addition to the claims for damages outlined above, an employee may also sue to recover their costs, disbursements, and attorney fees incurred in prosecution of the wage claim lawsuit. This allows the Oregon wage claim attorneys at Schuck Law, LLC to take most wage claim lawsuits on a contingency fee basis. This means, with minor exceptions that are within your control, that our Oregon wage claim attorneys only get paid their attorney fees if they recover wages or penalties for you.
Wage Claim Attorneys.
The Oregon wage claim attorneys (lawyers) at Schuck Law, LLC prosecute Oregon unpaid wage, minimum wage, and overtime wage claim lawsuits throughout Oregon, including but not limited to, Portland, Astoria, Beaverton, Portland, Bend, Clackamas, Portland, Coos Bay, Grants Pass, Portland, Hillsboro, Hood River, Portland, Klamath Falls, Lincoln City, Madras, Portland, McMinnville, Medford, Portland, Sandy, St. Helens, and Tillamook.