- General Overview of FLSA and New Changes to the Law
- Time Sheet and Recordkeeping Requirements
- Meal and Rest Periods
- What are the basic requirements for meal periods under Oregon law?
- May I require my employees to stay on the premises during their meal and rest periods?
- Am I obligated to provide additional rest breaks to employees who are smokers?
- If an employee works through the lunch period and wants to leave 30 minutes early, may I allow that?
- No matter how often I remind my employee, he refuses to take his meal and rest breaks. Since I have given him every opportunity to take the breaks but he chooses not to, am I in compliance?
- Travel Time Compensation
- Must an employer pay an employee for regular home-to-work/work-to-home travel?
- Is an employer required to pay an employee for travel time from one job site to another in the course of a day´s work?
- If an employer allows an employee to take a company vehicle home, does the employer have to pay for travel time from home to the job site and vice versa?
- If I require my employee to stop at one location at the beginning of the work day to receive instructions or to pick up tools or a company vehicle before reporting to the actual work site, do I have to pay any of the travel time?
- My employee frequently works at different locations and doesn´t have a fixed official work station. Do I have to pay her time when she travels more than 30 miles to a worksite?
- When is travel on an overnight trip considered work time that must be compensated?
- Is an employer obligated under wage and hour laws to pay employees for per diem expenses (hotel, restaurants, mileage, etc.)?
- If the employer does pay per diem and/or mileage to employees, must the employer still pay for travel time?
- Does the employer have to pay travel time when the employer arranges for a company vehicle to pick up employees and deliver them to the job site?
- May the employer pay a different rate for travel time than for hours worked at the employee´s regular rate?
- Do compensable travel hours have to be included when calculating overtime?
The following frequently asked questions provide answers to the most common questions that managers or employees may have regarding application of the new rules for the Fair Labor Standards Act (FLSA) that will go into effect January 1, 2020. In addition to providing answers to common questions, there are also links throughout this guide where individuals can go for further reading about FLSA.
NOTE: This guide is designed to address FLSA and overtime rules for unclassified employees. While there are many similarities with how overtime rules are applied to unclassified and classified employees, there are also key differences. Individuals with questions about overtime rules for classified employees should first consult the relevant collective bargaining agreement for guidance, and/or contact a member of the Employee and Labor Relations team at 6-3159.
If you have a question that is not addressed, please contact the Classification and Compensation unit in Human Resources. FAQs will be updated as needed.
General Overview of FLSA and New Changes to the Law
What is The Fair Labor Standards Act?
The Fair Labor Standards Act (FLSA) is the federal wage and hour law administered by the US Department of Labor (DOL). It impacts employees in both private and public sectors as well as in Federal, State and local governments by establishing minimum wage, overtime pay, and other wage and hour regulations. Employees are either exempt or non-exempt from the FLSA regulations.
What/when are the FLSA changes?
The Federal government amended the Fair Labor Standards Act and increased the salary thresholds for non-exempt employee to be eligible for overtime compensation to $35,568/annually, or $684/week. This change goes into effect on January 1, 2020.
What does it mean to be exempt or non-exempt?
Non-exempt employees are:
- covered by the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA).
- paid on an hourly or a salary basis,
- paid overtime for hours worked in excess of 40 hours in any workweek.
Exempt employees are:
- excluded from overtime requirements
- not paid overtime
- not required to record their hours worked.
How are positions determined eligible for overtime?
- Paid on a salary (not hourly) basis: An employee must receive a predetermined, fixed salary that is not subject to reduction due to variations in quality or quantity of work performed;
- Minimum salary: An employee must be paid a salary minimum of $35,568 per year ($684 per week) as of January 1, 2020; and
- Duties: An employee must meet the duties test of one of the categories established by FLSA (administrative, executive, professional, computer or outside sales)
Can an employee continue to be exempt by opting out of this change?
No. This change is mandated by federal law. An employee and employer cannot agree to waive or disregard any of the law’s requirements.
Can employees “volunteer” to work overtime hours?
No. All hours worked must be paid work hours, and any hours that exceed forty hours in a week are eligible for overtime.
Time Sheet and Recordkeeping Requirements
Does the department only need to track overtime hours?
No. The department should utilize tools that allow for easy reporting of the hours worked, breaks and meal periods, and any time worked over 40 hours in a work week for non-exempt employees. It is each employee’s responsibility to keep track of this time, however it is the department’s responsibility to ensure that employees have the means to do this, and that these records can be easily accessed and queried for reporting purposes.
What kind of tool can we use for tracking hours? Can supervisors use an app or a calendar?
Departments that have existing tools for tracking the hours of their non-exempt employees are authorized to use existing time tracking tools for this purpose as long as the tools accurately track and record the hours a non-exempt employee worked. A downloadable timesheet template is available on the HR website as one option that departments may use to track hours worked.
Meal and Rest Periods
What are the basic requirements for meal periods under Oregon law?
Meal periods of not less than 30 minutes must be provided to non-exempt employees who work 6 or more hours in one work period. No meal period is required if the work period is less than 6 hours. Additional meal periods are required to be provided to employees who work 14 hours or more. (See chart at the end of this fact sheet.)
Ordinarily, employees are required to be relieved of all duties during the meal period. Under exceptional circumstances, however, the law allows an employee to perform duties during a meal period. When that happens, the employer must pay the employee for the whole meal period.
What are the basic requirements for rest periods under Oregon law?
Oregon law requires an employer-paid rest period of not less than 10 minutes for every segment of four hours or major part thereof (two hours and one minute through four hours) worked in one work period.
This time must be taken in addition to and separately from required meal periods. The rest period should be taken as nearly as possible in the middle of the work segment. It is prohibited for an employer to allow employees to add the rest period to a meal period or to deduct rest periods from the beginning or end of the employee’s work shift.
Rest break exemptions: An employer is not required to provide a rest period to an employee when ALL of the following conditions are met:
- the employee is 18 years of age or older;
- the employee works less than five hours in any period of 16 continuous hours;
- the employee is working alone;
- the employee is employed in a retail or service establishment (e.g., a place where goods and services are sold to the general public, not for resale; and
- when the employee must leave the assigned station to use the restroom facilities.
For example, say an employee works exactly two hours, from 9:00 AM to 11:00 AM. Since these two hours are not the “major portion” of four hours, the employer does not need to provide the employee with a rest period.
If the employee works 2½ hours, however, from 9:00 AM to 11:30 AM, these 2½ hours would be the major portion of four hours, and the employer would be required to provide one 10-minute rest period approximately in the middle of the work period.
An employee who works from 8:00 AM to 5:00 PM and takes a 30-minute unpaid meal period at noon is entitled to two 10-minute paid rest breaks. The work period is 8½ hours, with two work segments of four hours or more, therefore, the employee should receive one rest break at approximately 10:00 AM, and another at approximately 2:45 PM.
An employee who works a work shift longer than 10 hours is entitled to a third rest break.
May I require my employees to stay on the premises during their meal and rest periods?
Yes; employees must be completely relieved of all duties, however, unless exempt.
Am I obligated to provide additional rest breaks to employees who are smokers?
If an employee works through the lunch period and wants to leave 30 minutes early, may I allow that?
Generally, no. If it is possible for you to provide the 30-minute meal period, you must do so and require the employee to take the meal break. If, however, one of the exceptions to the requirement to provide a meal period applies, you must pay the employee for working through the meal period, and you may then choose to shorten the employee’s work shift.
No matter how often I remind my employee, he refuses to take his meal and rest breaks. Since I have given him every opportunity to take the breaks but he chooses not to, am I in compliance?
No; your employee may not legally waive his rights to receive required rest and meal periods. To be in compliance, you must require your employee to take all mandated breaks, and you may even need to discipline an employee who refuses to do so.
Travel Time Compensation
Must an employer pay an employee for regular home-to-work/work-to-home travel?
No, unless the employer has created a policy or contract promising pay for such travel. Both the federal Portal-to-Portal Act of 1947 and Oregon law state that normal home-to-work and work-to-home travel need not be compensated.
Is an employer required to pay an employee for travel time from one job site to another in the course of a day´s work?
Yes, if the employee must travel to accomplish the day´s work. Examples include landscape maintenance employees or appliance repair persons who travel from site to site during the day.
If an employer allows an employee to take a company vehicle home, does the employer have to pay for travel time from home to the job site and vice versa?
No, as long as the employee performs no work duties until reaching the first work site. This is considered normal home-to-work/work-to-home travel, and the time needn´t be compensated.
If I require my employee to stop at one location at the beginning of the work day to receive instructions or to pick up tools or a company vehicle before reporting to the actual work site, do I have to pay any of the travel time?
Yes. The travel from the employee´s home to the first location need not be compensated, since it falls under the portal-to-portal rule. But once the employee arrives at the first required location, the employee is "on the clock" and the subsequent travel time is compensable.
My employee frequently works at different locations and doesn´t have a fixed official work station. Do I have to pay her time when she travels more than 30 miles to a worksite?
No. The "special one-day assignment" rule applies only when an employee has a fixed official work location. Your employee´s travel time thus falls under the portal-to-portal rule and needn´t be compensated, even when she travels to remote locations for the day.
When is travel on an overnight trip considered work time that must be compensated?
On overnight trips, all the time an employee spends traveling during normal work hours must be compensated -- even on weekends. An employer is not legally obligated to compensate for travel time that falls outside of the employee´s regular work hours, except when the employee is required to drive.
Four examples are offered to clarify when travel time is covered:
Example 1: Chet´s regular work schedule is 8:00 a.m. to 5:00 p.m., Monday through Friday. His employer requires him to attend a two-day business conference in Boise, Idaho. Chet travels by bus on Wednesday, from 10:00 a.m. to 4:00 p.m., and then returns home by bus on Saturday, traveling from 2:00pm to 8:00pm. Is this travel time covered?
The employer must pay for these six hours of travel time between 10:00am and 4:00pm, since they cut across Chet´s normal work hours.
The employer must pay for the three hours between 2:00 and 5:00 p.m., since the travel time cuts across Chet´s normal work hours. This is required even though Chet does not normally work on Saturdays.
Example 2: Marisol´s regular work schedule is 8:00 a.m. to 5:00 p.m., Monday through Friday. Her employer sends her from Portland to a work-related weekend convention in Chicago on a Friday night "red-eye" flight from midnight to 5:00 a.m. Is this travel time covered?
Since Marisol is traveling as a passenger outside of normal work hours, the employer needn´t pay for any of the travel time.
Example 3: Zhang Wei, whose regular work schedule is 8:00 a.m. to 5:00 p.m., Monday through Friday, travels by plane to an out-of-state business meeting. The air travel takes place from 12:00 noon to 5:00 p.m. At the airport, Zhang Wei is required to pick up a rental car and drive an additional five hours to reach the remote city where the meeting will take place. Is this travel time covered?
In this case, the employer must pay for 10 hours of travel time -- the five hours of air travel which cut across Zhang Wei´s normal work hours, plus the five hours of car travel which fall outside of Zhang Wei´s normal work hours, since he is required to drive during that time.
Example 4: Nada normally works the graveyard shift, from 12:00 midnight to 8:00 a.m. Nada’s supervisor assigns her to travel to California for a week-long business trip. The supervisor offers Nada a bus ticket for travel from 6:00 a.m. to 2:00 p.m., but Nada chooses to drive her private vehicle instead. Is this travel time covered?
In this case, since Nada was offered transportation as a passenger and was not required to drive, the employer may choose to pay Donna for all of the hours she spends driving her car, but is only legally obligated to pay for the two hours of travel from 6:00 a.m. to 8:00 a.m. -- the time that would have been compensable had Nada accepted the bus ticket.
Is an employer obligated under wage and hour laws to pay employees for per diem expenses (hotel, restaurants, mileage, etc.)?
Generally, no. But an employer must cover per diem expenses when requiring the employee to pay them would have the effect of bringing the employee below minimum wage for the pay period. (Minimum wage employees may never be required to pay per diem expenses.)
If the employer does pay per diem and/or mileage to employees, must the employer still pay for travel time?
Yes, the regular travel rules still apply.
Does the employer have to pay travel time when the employer arranges for a company vehicle to pick up employees and deliver them to the job site?
If employees are using such a service for their own convenience and are not required to travel in the company vehicle, this is still considered normal home-to-work/work-to-home travel. The driver of the company vehicle is the only person actually performing work and therefore the only employee to whom travel time pay is due.
May the employer pay a different rate for travel time than for hours worked at the employee´s regular rate?
Yes, as long as the employer pays at least minimum wage for all hours worked. If an employer intends to pay travel time at a rate lower than the regular hourly rate, the employer should clearly advise employees of the policy in advance.
Do compensable travel hours have to be included when calculating overtime?
Yes. Compensable travel hours must be counted for purposes of calculating whether an employee has performed more than 40 hours of work in a single workweek.