Issue link: https://read.dmtmag.com/i/332591
30 • JULY 2014 • WORLD FENCE NEWS What is fair pay for employee travel time? BY TOM LUBY, PRESIDENT, PROFIT BUILDERS INTERNATIONAL meaning of the Fair Labor Standards Act if the Portal Act had not been en- acted, then the question whether it is to be included or excluded in comput- ing hours worked under the law as changed by this provision depends on the compensability of the activity under the relevant contract, custom, or practice applicable to the employment. Time occupied by such an activity is to be excluded in computing the time worked if – when the employee is so engaged – the activity is not com- pensable by a contract, custom, or practice within the meaning of section 4; otherwise it must be included as work-time in calculating minimum or overtime wages due. Employers are not relieved of lia- bility for the payment of minimum wages or overtime compensation for any time during which an employee engages in such activities thus com- pensable by contract, custom, or prac- tice. But where – apart from the Portal Act – time spent in such an activity would not be time worked within the meaning of the Fair Labor Standards Act, although made compensable by contract, custom, or practice, such compensability will not make it time worked under section 4(d) of the Por- tal Act. The operation of section 4(d) may be illustrated by the common situation I mentioned earlier of underground miners who spend time in traveling be- tween the portal of the mine and the working face at the beginning and end of each workday. Before enactment of the Portal Act, time thus spent constituted hours worked. Under the law as changed by the Portal Act, if there is a contract be- tween the employer and the miners calling for payment for all or a part of this travel, or if there is a custom or practice to the same effect of the kind described in section 4, the employer is still required to count as hours worked, for purposes of the Fair Labor Stan- dards Act, all of the time spent in the travel, which is so made compensable. But if there is no such contract, custom, or practice, such time will be excluded in computing work-time for purposes of the Act. And under the provisions of section 4(c) of the Portal Act, if a contract, custom, or practice of the kind described makes such travel compensable only during the portion of the day before the miners arrive at the working face and not dur- ing the portion of the day when they return from the working face to the Last month I spoke about fair compensation for workers and how to calculate travel time for your employ- ees. To recap, it is not surprising that 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 and employee alike. And the laws apply to both hourly and salaried employees. Again, I remind my readers, I am not a lawyer and therefore the infor- mation contained in this article is not legal advice but merely for your infor- mation and consideration alone. My research revolves around "The Fair Labor Standard Act and the Portal-to-Portal Amendment" in the application of the minimum wage and overtime compensation provisions of the Fair Labor Standards Act (FLSA) to activities of employees on or after May 14, 1947, just to remind you. I spoke about the four basic cate- gories of employee travel time, all of which are applicable to the fencing in- dustry. They are: 1. Portal-to-portal travel (not in the sense of the original coal miner's portal, but traveling to and from work) which is not compensable. 2. Travel between work sites, which generally is compensable. 3. Special one-day assignments, which are compensable (with certain exceptions that I will discuss). 4. Overnight travel, which is part compensable and part non-compens- able, depending on circumstances. All of the aforementioned cate- gories were discussed in detail in last month's article regarding employee travel compensation. Please refer to the June issue of World Fence News for those questions. Other relevant technical issues that I would also like to discuss include how employees' time is spent and what portion of that time is compensable. A reminder again from last month's article: much of the verbiage I use in the article is comprised of di- rect quotes from legal federal statutes and documentation, so bear with me muddling through the text. In the text there are also refer- ences to exact passages or sections of the law. If you like, I can refer you to the entire federal code; just write or call me and I will be happy to provide you with more detail. Here we go… If time spent in such an activity would be time worked within the www.hutchison-inc.com 800-525-0121 Continuously interwoven vertical wires with horizontal cable form perfect hinge joints for flexibility. Available in 2 styles: M-5, I-2. 165 foot rolls. Certified T-Post 1.33 certified ASTM Gives maximum protection. High carbon, steel wire construction bounces back. Cross Lock knot leaves no sharp edges. High Tensile Cross Lock Fence Right-of-Way Gate CG650 2", 16 ga. Available in Red, Green,Old Iron Gray, Canyon Tan or Heavy Duty Brown Call for quotes meeting state and federal DOT specifications Industrial • Commercial • Farm • Ranch Certified Fencing Materials Interstate Highway • Federal or State Land Projects Oil Field Sites and Open Pit Mining • Residential V-Mesh Fence Ornamental Fence An old favorite, Class 1 galvanized wire fencing. Specification A-11 (Double Loop) fence has closely woven picket wires at the bottom and double-loop wires. • Field Fence • T-Posts/Wood Posts • Barbed Wire • Tubular Right-of-Way Gates • Portable Fencing Systems • Corner/Anchor Posts • High Tensile CROSSLOCK Game Fence Specification B-11 (Single Loop) styles with uniform pickets the entire height for a more open appearance. Both available in 36", 42", 48"