If the employee hasn’t started “working” yet, he or she need not be paid for that time, right?
Maybe. The question is: what is “working”? Non-exempt employees usually need to be paid for all hours worked—whether they are performing their “main job” or related functions . . . including tasks that employers might argue are being done before or after the employee’s working day. The law recognizes that there are some “preliminary” and “postliminary” activities which may be compensable working time, such as reviewing a daily schedule, planning routes, picking and packing supplies, setting up a work station, cleaning a truck or tools, etc. On the other hand, traveling to or from the workplace, checking in or out, changing clothes or washing up, or waiting for a pay check are the type of activities for which employees don’t have to be paid.
This is the basis of a recent class action lawsuit filed against Convergys Corp. and Convergys Customer Management Group Inc. in the Eastern District of Texas. Convergys call center employees are asserting that they were not paid for all time they worked. They allege that, even though their main job was taking calls, they performed “work” prior to actually logging into the call system and being available to take calls. They further claim that not only were they not compensated for that working time, but that since that time wasn’t counted, they were also denied overtime pay. It will be up to the court to determine whether the types of functions those employees performed before they logged in are the types of activities that should be counted as working time—even if the employees are not yet performing their main job of taking customer calls.
So even though your employees are not doing the main job for which you hired them, you still may have to pay for that time—unless you want to be threatened with paying back wages and overtime pay, liquidated damages, court costs, and attorneys’ fees, the way Convergys is facing now.