Issue link: https://read.dmtmag.com/i/32232
28 • JUNE 2011 • WORLD FENCE NEWS The other day I saw a TV com- mercial in the central Florida area from a law firm attempting to solicit average working clients who feel they are being underpaid and therefore un- justly compensated for their work ef- forts. The ad focused on cumulative hours worked, travel time and over- time. The message was, “You have rights, let us defend you.” Of course, the lawyers were cor- rect; every employee does have rights, especially in this wonderful country that is so protective of its citizens. The ad reminded me that I had researched and written about this very topic many Calculating fair pay and compensation BY TOM LUBY, PROFIT BUILDERS INTERNATIONAL years ago, first for one of my clients on the West Coast and then as an arti- cle for WFN. I did a bit of research into my old notes and I think some of my original findings in that report may bear repeating. The laws concerning compensable working hours can be confusing, to say the least, but the fair and accurate determination of compensable work- ing hours is a major concern in the fencing industry for both employer From The Pack With PulJak! Pull Away THE FENCEMAN’S FRIEND STRETCHES • LIFTS • ALIGNS • CLAMPS FOR: TIGHT CORNERS, SHORT PULLS, GATES ONLY MODEL A–21 ⁄2 PulJak® $90.50 Designed for those “Impossible” jobs Company LLC 4 Sycamore Way, Unit 6A • Branford, CT 06405 PHONE: (203) 500-2520 • FAX: (203) 738-1088 E-mail: puljak@comcast.net Visit us on the Web at www.puljakusa.com and employee. And the laws apply to both hourly and salaried employees. In the fence industry, one of the most troublesome and difficult to un- derstand compensation issues involves work time and travel time, both to and from work and/or job sites and travel during the work day. Some of the issues of concern re- garding compensable working hours range from time spent picking up sup- plies or waiting in line at the lumber yard, to time spent driving to and from work or a work site, to time spent at- tending training classes such as the AFA Fence Installation School. Some years back, because of the high degree of concern by so many of my clients in this area, I researched the applicable laws and, while I am not a lawyer and therefore the information contained in this article is not legal ad- vice but merely FYI, I found many in- teresting and noteworthy opinions concerning compensable travel time. My sources of information are the US DOL and the Fair Labor Standards Act (FLSA) of 1947, and the amend- ment commonly referred to as the “Portal-to-Portal” Act. The Fair Labor Standard Act and the Portal-to-Portal Amendment In the application of the minimum wage and overtime compensation pro- visions of the Fair Labor Standards Act (FLSA) to activities of employees on or after May 14, 1947, the determi- nation of hours worked is affected by the Portal Act only to the extent stated Card Reader Access Control Long Range Proximity Power requirement 24 VDC2A Exterior use rated HID Passive or active tags 125 kHz 18”-21” read range 6’ with HID AWID Passive tags 902-928 MHz 9’ to 11’ with AWID Use with stand alone Or PC based controllers Choose AAS ~ Quality You can Count on! Stand Alone Proximity 2000 card capacity Built in controller 1” read range Latch Card Sleep card Anti-Pass back Three strikes, you’re out Optional camera Master/Slave capability Printer output Night Light Simple to program Simple to install in section 4(d). This section requires that: “... in determining the time for which an employer employs an em- ployee with respect to walking, riding, traveling or other preliminary (before work) or postliminary (after work) ac- tivities described (in section 4(a)) there shall be counted all that time, but only that time, during which the employee engages in any such activity which is compensable (under contract, custom, or practice within the meaning of sec- tion 4 (b), (c)).” This provision is thus limited to the determination of whether time spent in such “preliminary” or “postliminary” activities, performed before or after the employee’s “princi- pal activities” for the workday must be included or excluded in computing time worked.” I was quoting directly from the legal stature but I am going to try to condense the information I discovered into non-legal, easy to understand terms for the sake of expediency and to achieve a more universal level of clarity. The original turn of the century versions of the amendment to the FLSA concerning the Portal-to-Portal Act were designed to govern the pay of miners who had to travel, some- times extensive amounts of time, from the mouth – or portal – of the mine shaft down to the working face (or area) of the mine where their work was performed. This portal to face travel time was sometimes an hour or two below the ground. At that time it was determined by contract with the major labor unions that the time the miners spent traveling from the portal of the mine was compensable, however the 1947 modification to the act clearly states that no employer shall be liable to his or her employees for failing to pay minimum wages and/or overtime com- pensation for time spent traveling to and from the actual place of perform- ance of the principal activities of the company. This includes time before a particular workday commences and after a workday ceases, what I earlier referred to as “preliminary” or “postliminary” activities. In official DOL jargon, the legal duration of the compensable workday is referred to as the “whistle to whistle” time. There are many notable excep- tions to this rule however. The DOL and the FLSA law provides for these qualifications: Travel categories: The FLSA defines four basic cat- (800) 541-5677 www.americanaccess.com egories of employee travel time, all of which are applicable to the fencing in- dustry. They are: