Can an employer withhold pay for a fire drill?

Question

Moved from WorkplaceSE.

Recently there was a routine fire drill in an office building. As with most fire drills, it took about half an hour for the fire drill to complete and for everyone to get back to work.

When the employees got back to their desks, they were told to charge 30 minutes of time to an overhead charge number, but then management sent out a correction saying that they were not allowed to charge the time lost during the fire drill. Instead, they had to "flex" their time (that is, make up the 30 minutes at some other time during the pay period, or else take vacation time).

Is this illegal, or just bad practice? Do these employees have any recourse? Any examples of similar times when an employer mandates a period of time that an employee NOT be allowed to work during normal working hours are welcome also.

Jurisdiction is in Virginia, USA, but input from other areas welcome for my curiosity.

This didn't affect me personally so I'm not searching for legal advice, but it happened to some close acquaintances of mine. For them, the cost of just working an extra 30 minutes is far less than getting lawyers involved, but it did pique my interest so I thought it was worth a question.

Answer 1

This seems to fall under the Federal Fair Labor Standards Act, and is defined as "waiting time." From Employment Law Handbook:

On-duty waiting time should be counted as hours worked. It is time spent by an employee, typically during normal work hours, waiting for direction from their team lead, supervisor, or manager. These on-duty waiting time periods usually last only for a short time and can be unpredictable as to when they occur and how long they will last. The employee is generally not allowed to leave the workplace during a period of on-duty waiting time. Essentially, because the employer benefits from having the employee available for immediate engagement in work and the employee is not otherwise able to use the time effectively for their own personal purposes, on-duty waiting time must be counted as hours worked.

Examples of on-duty waiting time that should be counted as hours worked include a messenger waiting for his or her next assignment, a warehouse worker waiting for a truck to arrive, factory workers waiting for machinery to be fixed, and a firemen waiting for an emergency call. Each of these examples represents a situation where the hallmarks of on-duty waiting time are present: the employee

• is not engaged in the work for which they were hired;
• remains subject to the direction of his or her employer;
• is not able to effectively use the time for themselves; and
• is unsure as to when the waiting period will occur and/or how long it will last.

Employees who work away from their employer’s place of business can also be on-duty while waiting for work. Repairmen for utility companies represent a good example of when workers may experience on-duty waiting time while away from the employer’s workplace. If a repairman must wait for a home or business owner to allow them into their premises or wait for a new service call to come in, that time should be counted as hours worked for purposes of minimum wage and overtime calculations.

Answer 2

After a bit more research, I found a whitepaper from J.J Keller & Associates that says in part

Time spent participating in fire or other disaster drills, even if voluntary or outside of regular working hours, is considered to the benefit of the employer and is compensable hours of work. Of course, such time may be compensated at the minimum wage rather than the employees’ regular rates.

Obviously this isn't case law, but the opinion of a company that bills itself as an expert in employment compliance law is at least worth more than my conjecture.

Answer 3

As usual, IANAL and you should consult one for real information. This is part of the Portal-to-Portal and Fair Labor Standards Act.

From http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5709&context=faculty_scholarship

It has been the Administrator's position that periods of inactivity during the workday are time worked if caused by interruptions beyond the employee's control and if he must stand by because work may at any time be resumed.1 8 The result may be the same even when the employer tells him he is free to leave the premises, if the interval is too short to be used effectively for his own interests. Typical situations involve machinery breakdowns, power failures, and delay of materials.

And from here: http://caselaw.findlaw.com/us-supreme-court/350/247.html (this is where a company didn't want to pay employees for changing in and out of protective clothing):

We, therefore, conclude that activities performed either before or after the regular work shift, on or off the production line, are compensable under the portal-to-portal provisions of the Fair Labor Standards Act if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed and are not specifically excluded by Section 4 (a) (1).

Amazon encountered this when they wanted to not pay workers for standing in line for security checks. This also went to the Supreme Court, and they found for the company (http://www.supremecourt.gov/opinions/14pdf/13-433_5h26.pdf).

The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers. As explained above, an activity is not integral and indispensable to an employee’s principal activities unless it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform those activities. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.

So, the question that a court would ask is was the fire drill "integral and indispensable" to your duties?

Answer 4

Just to add a perspective from another jurisdiction:

In Germany, the general definition of "work time" is:

Arbeitszeit im Sinne dieses Gesetzes ist die Zeit vom Beginn bis zum Ende der Arbeit ohne die Ruhepausen; [...]

Arbeitszeitgesetz (ArbZG), § 2

Translation:

Work time as used in this law is the time from the beginning to the end of work, excluding breaks; [...]

Following that definition, the whole time from when you start work to when you finish is work time - no matter what you actually do during that time.

Your employer may tell you to sit quietly on your chair and do nothing, or you may have to participate in a fire drill, or you may have to wait for the phone to ring to provide customer service - it all counts as work time.

So yes, the fire drill counts as work time. It does not matter whether the employer wanted to perform the drill or not - once the employee has started work, the "risk" (called ''Betriebsrisko'' in German law) of the employee not being able to work properly for any reason (no work available, electricity failing, fire drill...) is on the employer.

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In addition to that:

Even if you could not work for a whole day (e.g. office is flooded, or power outage), you still need to be paid. This is regulated in § 615 BGB:

Kommt der Dienstberechtigte mit der Annahme der Dienste in Verzug, so kann der Verpflichtete für die infolge des Verzugs nicht geleisteten Dienste die vereinbarte Vergütung verlangen, ohne zur Nachleistung verpflichtet zu sein. [...] Die Sätze 1 und 2 gelten entsprechend in den Fällen, in denen der Arbeitgeber das Risiko des Arbeitsausfalls trägt.

Translation:

If the recipient of a service defaults on accepting the service, the provider of the service may demand the agreed-upon fee for the services they could not render, without being obliged to render theses services later. [...] Sentence 1 and 2 also apply in cases, where the employer bears the risk of a work outage.

According to decisions by the highest court (BAG) this means that the employer bears the risk of an employee not being able to work, unless this is caused by the employee themselves (such as by being absent or ill). If an employee cannot work for a different reason, they still need to be paid, and do not have to make up the time later. However, these general rules can be modified in work contracts or general agreements (''Tarifvertrag'') to impose some liability on the employer.

This actually occurs in practice, for example if an employer must temporarily shut down operations due to natural desasters or technical problems - the employees must still be paid. Note, however, that this only applies to situations where the employee is available for work - if the employee cannot come to work, for example because of snow, they need not be paid.