Hours worked - Washington

Summary of differences between federal and state regulations

The federal law does not spell out actual hours that must be worked in a work day. Under the Fair Labor Standards Act, the workweek ordinarily includes all the time during which an employee is required to be:

• On the employer's premises,
• On duty, or
• At a prescribed work place.

The Washington Department of Labor and Industries (DLI) has the authority to investigate and regulate “hours worked” under the Industrial Welfare Act. The general requirements are nearly identical to the federal rules, but the DLI can make their own interpretations.

“Hours worked,” means all hours during which the employee is authorized or required, known or reasonably believed by the employer to be on duty on the employer’s premises or at a prescribed work place. An analysis of “hours worked” must be determined on a case-by-case basis, depending on the facts.

The DLI’s interpretation of “hours worked” means all work requested, suffered, permitted or allowed and includes travel time, training and meeting time, wait time, on-call time, preparatory and concluding time, and may include meal periods. “Hours worked” includes all time worked regardless of whether it is a full hour or less. “Hours worked” includes, for example, a situation where an employee may voluntarily continue to work at the end of the shift. The employee may desire to finish an assigned task or may wish to correct errors, prepare time reports or other records. The reason or pay basis is immaterial. If the employer knows or has reason to believe that the employee is continuing to work, such time is working time.

An employer may not avoid or negate payment of regular or overtime wages by issuing a rule or policy that such time will not be paid or must be approved in advance. If the work is performed, it must be paid. It is the employer’s responsibility to ensure that employees do not perform work that the employer does not want performed.

The following definitions and interpretations of “hours worked” apply to all employers bound by the Industrial Welfare Act, even those not subject to the Minimum Wage Act.

Travel time

Travel time, other than normal commute time, is that time that it takes to travel to and from the place where the work actually begins and ends and is considered “hours worked”.

As a result of the Washington Supreme Court Decision regarding travel time in company vehicles in Brink’s Home Security v. Agnich and Goakey (Docket #79815-0 issued October 18, 2007) the state is working to update their related policy. Refer to the Brink’s decision regarding travel time when employees are driving company vehicles to and from home and work. http://www.courts.wa.gov/opinions/index.cfm

Time spent driving or riding as a passenger from job site to job site (if the job site is not at the employer’s main business location), regardless of ownership of the vehicle, is considered time worked.

Training and meeting time

Training and meeting time is generally interpreted to mean all time spent by employees attending lectures, meetings, employee trial periods and similar activities required by the employer, or required by state regulations, and shall be considered hours worked.

Time spent by employees in these activities need not be counted as hours worked if all of the following tests are met:

• Attendance is voluntary;
• The employee performs no productive work during the meeting or lecture;
• The meeting takes place outside of regular working hours; and
• The meeting or lecture is not directly related to the employee’s current work, as distinguished from teaching the employee another job or a new, or additional, skill outside of skills necessary to perform job.

If the employee is given to understand, or led to believe, that the present working conditions or the continuance of the employee’s employment, would be adversely affected by non-attendance, time spent shall be considered hours worked.

Time spent in training programs mandated by state or federal regulation, but not by the employer, need not be paid if the first three provisions are met; that is, if attendance is voluntary, the employee performs no productive work during the training time, and the training takes place outside of normal working hours.

A state regulation may require that certain positions successfully complete a course in Cardio-Pulmonary Resuscitation (CPR). The rules may require that in order to be employed in such a position the person must be registered with the state or have successfully completed a written examination, approved by the state, and further fulfilled certain continuous education requirements. However, should the employer require all employees to attend training, all employees attending the training must be paid for the hours spent in the training course.

Although the training course may be directly related to the employee’s job, the training is of a type that would be offered by independent institutions in the sense that the courses provide generally applicable instruction which enables an individual to gain or continue employment with any employer which would require the employee to have such training, then this training would be regarded as primarily for the benefit of the employee and not the employer. In training of this type, where the employee is the primary beneficiary, the employee need not be paid for attending.

Where an employer (or someone acting on the employer’s behalf), either directly or indirectly, requires an employee to undergo training, the time spent is clearly compensable. The employer in such circumstances has controlled the employee’s time and must pay for it. However, where the state has required the training, as in the example stated above, a different situation arises. When such state-required training is of a general applicability, and not tailored to meet the particular needs of individual employers, the time spent in such training would not be compensable.

When state or federal regulations require a certificate or license of the employee for the position held, time spent in training to obtain the certificate or license, or certain continuous education requirements, will not be considered hours worked. The cost of maintaining the certificate or license may be borne by the employee.

Trainees or interns

As the state and federal definition of “employ” are identical, the DLI looks to the federal Fair Labor Standards Act for certain training conditions exempted from that act. Under certain conditions, persons who without any expressed or implied compensation agreement may work for their own advantage on the premises of another and are not necessarily employees. Whether trainees are employees depends upon all of the circumstances surrounding their activities on the premises of the employer. If all six of the following criteria are met, the trainees are not considered employees:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school; and
2. The training is for the benefit of the trainee; and
3. The trainees do not displace regular employees, but work under their close observation; and
4. The business that provides the training derives no immediate advantage from the activities of the trainees, and may in fact be impeded; and
5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and
6. The trainees understand they are not entitled to wages for the time spent in the training.

Students in a school-to-work program

Students may be placed in a school-to-work program on a paid or unpaid basis. The DLI will not require payment of minimum wage provided all of the following criteria are met. If all five requirements are not met, the business will not be relieved of its obligation to pay minimum wage, as required by the Minimum Wage Act.

1. The training program is a bona fide program certified and monitored by the school district or the Office of the Superintendent of Public Instruction; and
2. A training plan exists that establishes a link to the academic work, e.g., a detailed outline of the competencies to be demonstrated to achieve specific outcomes and gain specific skills. The worksite effectively becomes an extension of the classroom activity and credit is given to the student as part of the course; and
3. The school has a designated district person as an agent/instructor for the worksite activity and monitors the program; and
4. The worksite activity is observational, work shadowing, or demonstrational, with no substantive production or benefit to the business. The business has an investment in the program and actually incurs a burden for the training and supervision of the student that offsets any productive work performed by the student. Students may not displace regular workers or cause regular workers to work fewer hours as a result of any functions performed by the student, and
5. The student is not entitled to a job at the completion of the learning experience. The parent, student, and business all understand the student is not entitled to wages for the time spent in the learning experience.

If a minor student is placed in a paid position, all requirements of the Minimum Wage Act, the Industrial Welfare Act, and minor work regulations must be met. Minor students placed in a paid position with public agencies are subject to the Industrial Welfare Act.

Public agencies are not subject to the state minor work regulations, but they are subject to payment of the applicable state minimum wage. Note: Public agencies employing persons under age 18 are subject to the federal Child Labor Regulations and should contact the United States Department of Labor for specific information on hours and prohibited occupations.

Waiting time

In certain circumstances employees report for work but due to lack of customers or production, the employer may require them to wait on the premises until there is sufficient work to be performed. “Waiting time” is all time that employees are required or authorized to report at a designated time and to remain on the premises or at a designated work site until they may begin their shift. During this time, the employees are considered to be engaged to wait, and all hours will be considered hours worked.

When a shutdown or other work stoppage occurs due to technical problems, such time spent waiting to return to work will be considered hours worked unless the employees are completely relieved from duty and can use the time effectively for their own purposes. For example, if employees are told in advance they may leave the job and do not have to commence work until a certain specified time, such time will not be considered hours worked. If the employees are told they must “stand by” until work commences, such time must be paid.

“Show up” pay

An employer is not required to give advance notice to change an employee’s shift or to shorten it or lengthen it, so there is no legal requirement for show-up pay. That is, when employees report to work for their regularly scheduled shift but the employer has no work to be performed, and the employees are released to leave the employer’s premises or designated work site, the employer is not required to pay wages if no work has been performed.

“On-call” time

Whether or not employees are “working” during on-call depends upon whether they are required to remain on or so close to the employer’s premises that they cannot use the time effectively for their own purposes.

Employees who are not required to remain on the employer’s premises but are merely required to leave word with company officials or at their homes as to where they may be reached are not working while on-call. If the employer places restrictions on where and when the employee may travel while “on call” this may change the character of that “on call” status to being engaged in the performance of active duty. The particular facts must be evaluated on a case-by-case basis.

Preparatory and concluding activities

Preparatory and concluding activities are those activities that are considered integral or necessary to the performance of the job. Those duties performed in readiness and/or completion of the job shall be considered hours worked. When an employee does not have control over when and where such activities can be made, such activities shall be considered as hours worked.

Examples may include the following:

• Employees in a chemical plant who cannot perform their principle activities without putting on certain clothes, or changing clothes, on the employer’s premises at the beginning and end of the workday. Changing clothes would be an integral part of the employee’s principle activity.
• Counting money in the till (cash register) before and after the shift, and other related paperwork.
• Preparation of equipment for the day’s operation, i.e., greasing, fueling, warming up vehicles; cleaning vehicles or equipment; loading, and similar activities.

Meal periods

Meal periods are considered hours worked if the employee is required to remain on the employer’s premises at the employer’s direction subject to call to perform work in the interest of the employer. In such cases, the meal period time counts toward total number of hours worked and is compensable.

State

Contact

Washington Department of Labor and Industries Specialty Compliance Services Division

Regulations

Administrative Policy: Hours Worked, https://roar-assets-auto.rbl.ms/documents/14578/esc2.pdf

Revised Code of Washington, Title 49, Chapter 49.12, §49.12.041: Investigation of wages, hours and working conditions — Statements, inspections authorized.

Washington Administrative Code, Title 296, Standards of labor for the protection of the safety, health and welfare of employees for all occupations subject to Chapter 49.12 RCW

Federal

Contact

The Department of Labor is the federal agency that monitors hours worked.

Regulations

U.S. labor regulations for hours worked can be found in CFR 29:

• Part 785 Hours Worked
• Part 778 Overtime Compensation