If employees are scheduled to begin working at 6 a.m., but no one from management shows up until 7 a.m. to unlock the doors, can the workers be penalized and docked an hour of pay?
No. You need to pay them. Your morning snoozefest doesn’t exempt you from paying your employees who are ready, willing and waiting.
While you might think it’s logical that they weren’t doing any actual work, so they don’t need actual pay, you’ll run into some legal problems if you go that route. The law is pretty clear, as is the moral principle.
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First, we’ll start with the law. There are two concepts in employment law called “engaged to wait” and “waiting to be engaged.” They can be a bit confusing, because, let’s face it, the government came up with this.
If an employee is engaged to wait, their time is not their own — even if they are standing around doing nothing. They can’t go home and take a nap. They can’t go grocery shopping. They are waiting. The U.S. Department of Labor gives these examples.
- A receptionist who reads a book while waiting for customers or telephone calls.
- A messenger who works a crossword puzzle while awaiting assignments.
- A factory worker who talks to fellow employees while waiting for machinery to be repaired.
- A server in a restaurant waiting for customers to arrive.
Waiting for the manager to show up counts as engaged to wait. The workers couldn’t leave — after all, the manager would have been furious if they showed up and there were no employees. The employees probably didn’t know when the manager would show up, so they couldn’t do anything else. And even if they could, there’s not a heck of a lot they can do at 6 a.m. So, they were engaged to wait.
Don’t get this confused with waiting to be engaged or off-duty time. This is when your employee is not working, knows they aren’t working and has enough time to do something else. The Department of Labor gives this example: “A truck driver is sent from Washington, D.C., to New York City, leaving at 6:00 a.m. and arriving at … noon. If the driver is completely and specifically relieved from all duty until 6:00 p.m. when he or she again goes on duty for the return trip, he or she is waiting to be engaged and the time is not hours worked.”
Your employees were in a very different situation: They couldn’t go off and do whatever they wanted. So, they were engaged to wait and have to be paid.
Morally, this shouldn’t even be a question. When you tell employees to show up at a specific time, and they do, that’s when they should start getting paid. And, in this case, because the employees were stuck waiting for a manager to let them in, you should be falling over yourself apologizing. A free lunch would be a good peace offering.
The last thing you want to do is make the employees feel like you don’t value them. Anybody willing to show up for work every day at 6 a.m. deserves your respect and recognition for their hard work.
If you said, “We don’t have to pay you because you weren’t actually working,” chances are they would believe you. But they would resent you.
The fact that this even crossed the minds of someone at your company makes me concerned that employees aren’t valued as they should be. Once your employees start to believe you don’t appreciate them, they’ll start thinking about leaving. And do you know who will leave first? Your best employees. That’s because it’s easy for them to find a new job.
Once employees leave, you have to replace them. Even if the jobs are fairly straightforward, you’ve got recruiting and training costs. Even experienced workers will have to learn your systems and your methods. You can count on reduced productivity if you have to replace a lot of people.
Even though you may be tempted to save a few dollars by not paying your employees who were engaged to wait, it would cost you more in the long run — and that’s if they don’t take the case to the Department of Labor, which they probably won’t if it was only a single hour of pay, but if this happened multiple times, they might.
So, apologize profusely, follow the law, pay up and make sure management arrives at 5:45 a.m.
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