When it comes to wage-and-hour compliance, not every minute an employee spends at or moving through the workplace necessarily counts as compensable work time. Two recent developments highlight where the line may be drawn, offering useful guidance for evaluating when walking or travel time fall inside—or outside—the compensable workday.
- In a recent opinion letter, the U.S. Department of Labor’s Wage & Hour Division (WHD) addressed whether time spent walking to and from a designated break area during an unpaid meal period must be compensated under the Fair Labor Standards Act (FLSA).
- In a recent decision, a New York federal court considered whether time spent walking between a security checkpoint and the locations where hourly warehouse employees clocked in and out must be compensated under the New York Labor Law (NYLL).
Although arising in different contexts, both developments serve as an important reminder for employers to carefully evaluate timekeeping practices and determine whether activities occurring during or outside an employee’s scheduled shift constitute compensable work time.
WHD: Walking to and From a Break Area Does Not Make a Bona Fide Meal
Period Compensable
Facts: An employee at a detention facility receives a 60-minute meal break period. The employer prohibits eating in work areas, and after walking to and from the designated break area, the employee is left with 46 to 54 minutes of break time.
Question: The employee asserted that employees should receive the full 60-minute meal period while in the designated break area and asked for guidance on whether the uncompensated 60-minute period constitutes a bona fide meal break.
Answer: Based on the facts presented, the WHD concluded that the 60-minute meal break constitutes a bona fide meal period, and therefore, is not compensable time under the FLSA, even though the employee had to use part of that time to walk to a designated meal location.
- Consistent with a prior opinion addressing off-site travel time during a meal break, the WHD noted that the employee is fully relieved from work duties during the meal break and that 46 to 54 minutes “is more than enough for the purpose of eating a meal.”
- Citing prior opinions and case law, the WHD explained that 30-minute meal breaks generally are not compensable and, under certain circumstances, even meal periods of less than 30 minutes may be “bona fide and not compensable” where, for example, employees have sufficient time to eat a meal or the employer and employee have agreed to a shorter meal period.
- The WHD also rejected the employee’s assertion that employees are not “fully relieved of their duties” until they reach their break area, concluding that a few minutes of travel time “does not undermine the non compensable nature of the break” under the “predominant benefit test.” In contrast, “short rest breaks of up to 20 minutes” may be compensable because such breaks primarily benefit the employer by “promot[ing] the efficiency of the employee.”
New York Federal Court: Pre- and Post-Shift Walking Time Is Not Compensable
A New York federal court also recently addressed the compensability of walking time in a putative class action against retail giant Target alleging multiple violations of the NYLL, including failure to pay minimum wages and overtime.
- Facts: Plaintiffs were hourly warehouse employees who had to walk up to 15 minutes from the entry security checkpoint to reach time clocks near their assigned departments.
- Argument: Both parties agreed that the walking time would not be compensable under federal law because the FLSA as amended by the Portal-to-Portal Act (PPA) excludes certain preliminary and postliminary activities from compensable time, including walking or traveling to and from the place where an employee performs principal activities. But plaintiffs asserted that New York law did not incorporate this exclusion and required compensation for this time even though federal law did not.
- Findings: Upon reviewing the history and structure of the applicable NYLL regulations, the court agreed with Target that New York had incorporated the relevant federal limitations on compensable time for pre- and post-shift work and therefore found that plaintiffs’ walking time was not compensable under the NYLL.
Employer Takeaways
Together, these developments reinforce an important wage-and-hour principle: An employee’s presence on an employer’s premises does not, alone, make every minute compensable. Instead, employers should evaluate each activity based on the context, nature and purpose of the activity, and the applicable law. To determine whether timekeeping practices accurately capture all compensable work time, employers should consider the following:
- Do not assume all time on company premises is compensable; assess the specific facts carefully. Time spent walking through an employer’s facility or engaging in other preliminary or postliminary activities may be non compensable depending on the activity and applicable law.
- Focus on whether employees are actually relieved of work during meal periods. A bona fide meal period does not necessarily become compensable merely because an employee spends a few minutes walking to and from a designated break area.
- Distinguish meal periods from short rest breaks. Bona fide meal periods are treated differently from short rest breaks that primarily benefit the employer, which generally must be counted as compensable work time.
- Review pre- and post-shift activities. Identify required activities performed before clocking in and after clocking out and determine whether they are compensable.
- Do not assume federal and state law are identical. Separately evaluate applicable state and local wage-and-hour laws, which may provide broader protections than the FLSA.
If you have any questions related to the WHD’s opinion letter or the New York federal court’s decision, or need assistance reviewing your organization’s wage and hour policies and practices, please reach out to the Nukk-Freeman & Cerra Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.