"Office Hours" --
by Richard S. Rosenberg and Jeffrey P. Fuchsman

With all of the publicity surrounding the passage of the Eight Hour Day Restoration and Workplace Flexibility Act, Cal. Labor Code ? 500 et seq. ("AB 60"), law firms must ensure that the firm's wage and hour practices comply with the law. AB 60 (which went into effect January 1, 2000) requires the firm to pay statutory overtime to any non-exempt employee for any hours worked in excess of eight hours in a work day, forty hours in a work week, and for the first eight hours on the seventh consecutive day of work in the work week. While a law firm's salaried attorneys, administrator, human resources director, marketing director, and information systems manager most often will be exempt from the new overtime rules, most other positions are not.

Employees must be paid for all hours worked. Applying this concept to everyday situations is not as easy as it looks. Some common examples in a law firm are:

? The secretary who is required to eat lunch at his or her desk because an important document has to be filed by 4 p.m.;

? The paralegal who spends 12 hours traveling for an out-of-town document production;

? The staff member who attends computer training;

? A computer technician who wears a pager and must be available for after-hours repairs;

? A secretary who comes in early or stays late to finish up a big project or organize his/her desk;

? The administrative staff member who attend seminars on marketing and client development, or who accompanies a partner to a bar association function or trade show.

For wage-hour law purposes, "hours worked" is any time during which an employee is subject to the employer's control, and includes all time that the employee either is "suffered" or "permitted" to work. See, e.g., 8 Cal. Code Regs. ?11040(2)(H); Morillion v. Royal Packing Company, ___ Cal. 4^th ___, 2000 Daily Journal DAR 3193 (March 27, 2000); 29 CFR ?? 785.11-785.13. Thus, if the firm knows or has reason to believe that an employee is engaged in a productive endeavor on behalf of the firm, the time is compensable. This is so even if the firm did not demand or authorize the service. It is not enough for the firm to issue a rule against working unauthorized overtime; it must make certain the rule is enforced. Thus, the firm will have to compensate the staff member who chooses to come in early, work through lunch, or stays late, regardless of whether the firm actually authorized the extra work. This principle applies equally to work performed away from the firm. Thus, when employees take work home, telecommute, or work while traveling, they must be paid for the hours worked. Non-exempt employees must be given a minimum ten-minute rest period for every four hours of work, to be taken when practicable in the middle of each four-hour period. Time spent in these mandated rest periods is counted as time worked. 8 Cal. Code Regs. ?11040(12); 29 CFR ? 785.18.

Meal periods need not be paid, but must be provided. Employees that work more than five hours per day must be allowed to take a duty-free meal period. This means that they should not be interrupted to perform work functions. If they are, the meal period becomes compensable time. If the employee is scheduled to work no more than six hours per day, the meal period can be waived by mutual consent of the employee and the firm. Cal. Labor Code ? 512. Such an agreement should be documented in the employee's personnel file.

If the firm places any restrictions on the employee during the meal period, the time will be deemed hours worked. For example, if an employee is not allowed to leave the premises during lunch, or is required to perform tasks for the firm during their lunch hour, the meal break will be considered working hours. Bono Enters., Inc. v. Bradshaw, 32 Cal. App. 4^th 968 (1995); Madera Police Officers Ass'n v. City of Madera, 36 Cal. 3d 403 (1984). This could result in daily overtime as well where the employee's total working hours (including lunch) exceeds eight hours.

On-call employees may be entitled to pay for so-called stand-by time. Whether stand-by time is compensable depends on the degree to which the employee is free to engage in personal activities while on-call. Stand-by time is not typically considered compensable if the employee is free to leave the firm's premises and is sufficiently unrestricted so the time can be spent for personal purposes. 29 CFR ?? 785.14-785.17. The firm should carefully evaluate each situation.

Travel time to and from work ordinarily is not compensable. Any travel time incurred after the employee arrives at work is counted as hours worked. Moreover, the California Supreme Court recently clarified that if an employee is required to travel in a company supplied vehicle, all of the travel likely will be considered work time. Morillion, supra. Travel time during the normal workday is paid at the employee's regular rate. Travel outside the normal workday may be paid at a lower negotiated rate, so long as the rate is at least $5.75. If an employee travels out of town, the travel time is compensable work time. However, the employee's usual meal time and the time spent driving to/from the airport can be deducted to the extent that this time approximates the employee's normal commute time. Thus, if an employee typically travels 30 minutes to work, the firm may deduct 30 minutes from each end of the travel day for the commute to/from the airport. If the employee travels from home directly to a client or other work assignment, a deduction for the normal commute can be made in this circumstance as well. (A similar deduction can be made if the employee goes home from the off site work assignment). If an employee is required to travel out of town overnight, all of the travel time is counted as hours worked. Once again, a deduction can be made for regular meal times, sleep hours and time the employee is not otherwise working. 29 CFR ?? 785.33-785.41. Special travel time rules apply for employees that use a company vehicle to commute to off-site locations. Cal. Labor Code ? 510(b); 29 U.S.C. ? 254(a).

Time spent attending lectures, conferences, and training classes will be considered work time unless: (1) attendance is totally voluntary (which is rarely the case); (2) the time spent is outside the employee's regular working hours; (3) the employee does not perform productive work during the program; and (4) the program is not directly related to the employee's job. 29 CFR ? 785.27.

The compensability of time spent at industry conferences, bar association, and other offsite social events will turn on whether the employee is required to attend. If attendance is purely voluntary and serves no business purpose, then the time need not be paid.

To avoid potential wage and hour violations, law firms must recognize when employees are "on the clock" and pay them accordingly. In that regard, the firm is required to maintain accurate records showing all actual daily work hours. These records must be kept for at least three years. Accurate record keeping is particularly important for employees that telecommute, or where it is difficult for the firm to closely monitor employees' activities. Where an employer's record keeping is inadequate, the employee's account of working hours likely will be credited.

Richard Rosenberg and Jeffrey Fuchsman are partners in Ballard, Rosenberg & Golper, a Universal City law firm which exclusively represents management in labor and employment matters.