Do I Pay My Employee If…?

Beth Dean 09.26.23
Weekly Tip Blog Header - 2023-09-26 Employee Pay

Spoiler Alert: Yes

We frequently see a question posed to HR pros: “Do I have to pay my employee if…?”

We’ll go ahead and give you a major hint at the outset. In many of the scenarios we see, the answer is yes, you do have to pay your employee. Here are a few scenarios.

Working through lunch break

A bona fide meal period is typically 30 minutes long with no work interruptions. If an employee works through that time in any fashion, it’s considered compensable work time. Suppose you would like to enforce lunch breaks every day. In that case, you must do it through a handbook policy, clear communication with the employees, and one-on-one coaching. Not by illegally docking someone’s pay.

Lunch breaks that get interrupted for just a minute

As mentioned above, a bona fide meal break has absolutely no work interruptions. Interruptions may seem small, but they interrupt that break, making it compensable time. Minor interruptions may include a coworker asking a quick question on how to do something, a leader asking their report about how a project is coming, checking work emails, and more. 

Unauthorized overtime

Unauthorized overtime is another area where the issue must be solved through coaching and employee discipline, not by withholding pay for hours worked. Even if the work was not authorized, scheduled, or approved in advance, you must pay the employee for any time worked. 

Short breaks

Similar to meal times, a break can be unpaid only if it is longer than 20 uninterrupted minutes. Breaks shorter than that time, or that get interrupted by work, are still compensable. 

Expressing milk

If it takes fewer than 20 minutes, expressing milk for babies may count as a short break that is compensable. However, lactating mothers often bring work with them when performing the task of pumping milk. Therefore, time spent expressing milk is also compensable if they perform work of any kind during that time.

Checking email or responding to work text after hours

This is a tricky area to watch out for since employers could unknowingly miss out on paying employees. If an employee checks their email or responds to a work text that was sent after hours, that is compensable work time. For this reason, it is often recommended to not allow nonexempt (hourly) employees to have access to work email on their mobile devices. 

Training time

Job-related training is compensable. There is a caveat, however, that allows training time to be unpaid if ALL four of these criteria are met: it must be outside of regular hours; it must be voluntary; it must not be job-related; and no other work is concurrently performed. (Source: DOL) The DOL specifically mentioned online training, even when completed away from the worksite and on a topic important to the company but not directly related to the employee’s job duties, as an example that usually is still job-related and thus compensable.

Paying employees can be tricky! For help with your questions, contact your HR Business Partner at Nextep.

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