Recording hours worked continues to trip up employers

12/11/2013 05:00:00 AM
Fritz Roka

Editor's note: A special thanks to Dr. Monica Ozores-Hampton at the Southwest Florida Research and Education Center for coordinating The Immokalee Report, of which the article below is part.

tomato harvestVicky BoydIf tomato harvesters are told to arrive at 8 a.m. but have to wait until 10 a.m. until the fruit are dry enough so they can start picking, they must be paid for those two hours of waiting under Wage and Hour rules.

Department of Labor Wage and Hour investigators from the Tampa office continue to uncover numerous violations during their audits of citrus harvesting companies.

The most prevalent occur when agricultural employers do not correctly record the daily start and stop times for seasonal and migrant farm workers.

As a consequence, they underreport the number of “compensable” hours for each worker. At the very least, this mistake results in a record keeping violation of the Migrant and Seasonal Worker Protection Act (MSPA).

More importantly, underreporting the number of compensable time can lead to a minimum wage violation, which draws larger civil monetary penalties. At the end of a company’s pay period—typically a week—a simple calculation is made to determine if each worker has been paid at least the mandated minimum wage: total gross pay divided by total number of compensable hours.

If compensable time is underreported, average hourly earnings might appear to be above minimum wage when in fact if the correct number of compensable hours is reported, average hourly earnings would be below minimum wage.

Compensable hours may cover waiting

Some employers mistakenly think that the number of compensable hours equals the time spent doing the primary work task.

Take, for example, a tomato harvester who began picking at 10 a.m., took one hour for lunch and rest breaks, and quit at 4 p.m. The number of hours the worker spent harvesting was five.

Compensable time, however, includes time spent doing any work task plus any waiting time under the direction or control of a supervisor.

If the same tomato harvester arrived at the field in a bus with the rest of the crew at 8 a.m. and was told to wait until the morning dew dried off the plants, the additional two hours spent “waiting to be engaged” are compensable. Likewise at the end of the day, if the workers sat on the bus for 30 minutes waiting for the bus driver to finish his end-of-day duties, that time as well is compensable.

Lunch breaks also can be confusing

Whether to deduct a lunch break from total compensable time is another matter of confusion for many employers.

There is no state or federal regulation that requires an employer to provide lunch or rest breaks as long provides a lunch break of at least 30 consecutive minutes, the lunch break can be deducted from total compensable time.

However, and this is an extremely important condition, the workers must be “completely relieved of duty” during the entire meal break. If a DOL Wage and Hour investigator determines that lunch time is being deducted and workers are continuing to work through their break, the employer will be issued a record keeping violation and the lunch time will be added back into the compensable time totals.

Many employers offer their farm workers transportation from home or a central pick-up point to the work site. As long as transportation in the employer’s vehicle is not required, time spent traveling to and from a work site is not compensable. But any time during the work day spent traveling from one farm or block to another is compensable.

One final issue regarding compensable time concerns workers who arrive early, sometimes hours before the posted start time. If these workers volunteer or are allowed to do work activities, those hours count.

The word “volunteer” does not exist within a Wage and Hour investigator’s vocabulary. If it is the worker’s choice to show up early, then the early arrival time is not compensable as long as the employer or manager prevents workers from performing work-related tasks. ­

For workers who are paid an hourly rate, their gross pay for the week or day is simply the promised hourly rate multiplied by the total number of compensable hours.

In this case every hour of waiting time is being paid by the employer. For workers who are paid by the piece, paying for waiting time is not always the case.

As long as a piece-rate worker’s average hourly gross earnings (number of pieces multiplied by the piece rate, then divided by the total number of compensable hours) is above the minimum wage, no additional payments need to be made for waiting time.

Seeking outside help may pay

Keeping track of the correct number of daily compensable hours for seasonal and migrant farm workers is a regulatory requirement and one that has drawn close scrutiny by DOL Wage and Hour investigators.

Individual farm situations may require the farm owners or managers to seek advice from legal experts in this specific area of wage and hour regulations.

Private council may prove to be very cost-effective if potential problems can be identified and corrected before DOL Wage and Hour audits, and/or workers seek their own private council if they feel that they are not being adequately compensated.

The issues presented in this article are part of the Farm Labor Supervisor Core training program. If you have any questions, contact Fritz Roka at 239-658-3400 or Roka is an associate professor and economist in the Food and Resource Economics Department based at the Southwest Florida Research and Education Center in Immokalee.

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Washington  |  December, 12, 2013 at 10:36 AM

In Washington state if an employee has to wait for plants to dry, for it to quit raining, warm up, etc and can't get in at least 40 hours of work per week they are eligible for unemployment for the missed hours. I don't know if this is a unique state law or is in effect elsewhere. Further complicates the situation.

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