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Paying your employees to shower: lessons from the most expensive wage & hour verdict ever

Last month, a federal jury awarded employees $22 million in back wages, the largest recorded verdict obtained by the U.S. Department of Labor (“DOL”), after finding a Pennsylvania company failed to properly pay workers for the time it took employees to change their clothes and shower. Yup, for the time it took to shower!

To most people, it may sound odd that employees needed to be paid for showering. And, to be fair, most of the time employers do not need to pay their employees for daily tasks like showering and changing (“preliminary or postliminary activities,” in legal terms). But in certain industries, this is required and common.

So why did this employer need to pay their employees for these things? Because the law mandates this. The federal Fair Labor Standards Act (“FLSA”) requires employees be paid for all hours worked. The question is: what counts as hours worked?

In most instances, “hours worked” means any time an employee is required to be on duty doing job-related activities. However, if you use this commonsense definition, you could land yourself in some hot water. That is because the FLSA includes some unexpected things as “hours worked,” including, in certain circumstances, showering.

Here is the outline of what the FLSA says is “hours worked:”

Principal Activities: The FLSA considers principal activities as work performed by an employee that is directly related to their primary job duties. This includes activities such as manufacturing goods, providing services, or any other tasks that are integral to the employee’s role.

Preliminary and Postliminary Activities: Activities that are performed before or after an employee’s principal activities may also be considered compensable. For example, if an employee needs to set up equipment before the shift or clean up the work area or their person after completing work, these activities are generally counted as hours worked. In the above referenced case, showering and changing clothes fell under this type of activity. The rationale actually makes some sense.  When an employer asks an employee to work in a dirty/unhealthy environment, going home without a shower and/or change of clothing is unsafe and unhealthy. Imagine a coal miner or iron caster who is covered in harmful chemicals and particles by the end of the shift. The employer must pay for the average amount of time it is expected for such workers to clean up. However, if the shower is just so the employee can go out to visit with friends, that is a convenience and need not be compensated.

Waiting Time: Waiting time generally counts as hours worked when the employee is required to remain on the employer’s premises or another designated location. For instance, if an employee must wait for delivery of some equipment before work can begin or for further instructions, this waiting time must be compensated.

On-Call Time: If an employee is on-call and restricted from using their time for personal pursuits, such as being required to remain at a specific remote location, this time is typically considered hours worked.

Travel Time: Travel time during the workday, such as traveling between job sites or client locations, generally counts as hours worked. However, regular commuting time from home to the workplace and back is not typically included.

Breaks and Meal Periods: Short breaks, typically lasting around 20 minutes or less, are generally not considered hours worked and must be compensated (but some states lower this threshold to 15 minutes). However, longer meal breaks during which an employee is completely relieved from duty, typically lasting 30 minutes or more, are not counted as hours worked.                                                                   

 As you can see, “hours worked” is not always black and white. Employers should be careful to analyze their employees’ work-related duties to ensure they are being compensated for all hours worked. Failure to compensate employees can quickly compound—as it did for the employer who now must pay $22 million all because their employees showered.

Brody and Associates regularly counsels management on compliance with pay discrimination as well as all wage and hour issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.