Introduction to the Fair Labor Standards Act (FLSA)

finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe he is continuing to work and the time is working time. 39

D. R OUNDING AND D E M INIMIS R ULES

Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. 40 Additionally, employers may round time worked to the nearest five minutes, six minutes, or 15 minutes, 41 provided that rounding policies are “neutral” and allow time gained and lost to even out over time. 42

To determine whether working time should be considered de minimis , and therefore not compensable, employers must consider:

 The practical and administrative difficulty of recording the additional time;

 The size of the claim in the aggregate; and

 Whether the work was performed on a regular basis. 43

Employers must be wary of employees working any time past their regular work day. Up to seven or eight minutes of additional work may be de minimis , and therefore not compensable, if the additional work is sporadic and there is administrative difficultly in recording the time. However, any increment of additional time that is worked on a regular basis may be compensable. E. E MPLOYEES W ORKING IN T WO OR M ORE A GENCY J OBS Public entities often are comprised of departments, each with relative autonomy. Public employers should recognize that the hours worked by an employee who works full time in one department, and moonlights or works part time in another department, usually will be considered to have worked the combined number of full time and part time hours when calculating hours worked for the entity. A significant exception to this general rule applicable to public entities is the exception for “occasional or sporadic” work “in a different capacity:”

[W]here State or local government employees, solely at their option, work occasionally or sporadically on a part-time basis for the same public agency in a different capacity from their regular employment, the hours worked in the different jobs shall not be combined for the purpose of determining overtime liability under the Act. 44

Introduction to the Fair Labor Standards Act (FLSA) ©2019 (s) Liebert Cassidy Whitmore 15