QUESTION
Is it legal for a restaurant to tell employees to wait to clock in until business picks up to cover labor costs?
Asked on Sep 12th, 2011 on Labor and Employment - Florida
More details to this question:
The restaurant I work at is a corporate business so I''ve been aprehensive about whether to bring this issue up or not (figuring corporations always dot their I''s and cross their T''s in legal matters). On many occasions for over a year now, my store (not sure if this is company-wide) has told it''s employees not to clock on until business increases so as to cover labor costs. Employees have waited around to get on the clock and work from anywhere between 10-15 minutes upwards to 2 1/2 hours. Mind you, employees do not work during this time; we just stand around the parking lot or hang out in the back of the store out of customers'' sight. I would like to know if this is in fact legal because over time, the hours add up to a lot of money lost from what rightfully should have been earned by the employee. Granted the restaurant industry is unpredictable, however, when any person is scheduled to work anywhere and shows up to work on time, they expect to work regardless. Please help me, thanks
1 ANSWER
Labor and Employment Attorney serving Atlanta, GA
2 Awards
-Under the Fair Labor Standards Act, you must be paid for all the time that you worked. Compensable time includes time when you are being paid to wait for a customer to show up. With regard to "stand-by" time the question boils down to whether you are engaged to wait, or waiting to be engaged. When engaged to wait, the time is compensable under the FLSA. If you are waiting to be engaged, it is not (unless you actually are engaged). If you have such freedom that you could use the time for your own purposes when you are waiting to be called in to work, you are waiting to be engaged. If you are required to show up at your employer's store at a certain time, and must remain there until a customer comes, you are "engaged to wait."It is unlawful to require this while also prohibiting you from clocking in.
Keep accurate written records of the exact time that you show up for work each day. That will determine the time that you should start earning pay. If you employer fails to record this time, or orders you to not clock in before a customer shows up, it violates the law. Since the employer is required to keep accurate records of all the time the employee works (including time the employee is "engaged to wait"), that failure will be an additional violation of the law. The court will accept your record of the time that you actually showed up each day, and you will be awarded unpaid wages, overtime (if any) and a similar amount as "liquidated damages." Plus you will be awarded your attorneys fees.
Michael Caldwell
494-979-3150
Answered on Sep 19th, 2011 at 6:41 PM