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The regular rate exclusions: well, you showed up. I guess that’s worth something.

Editor’s Note:  OK you guys know how much I have really enjoyed Emily’s work on this blog but I have to give her a bit of constructive criticism here.  Don’t you think a better way to start this thing would have been “I woke up, got out of bed, dragged a comb across my head . . . ” etc. etc.?  Those of you that are old enough are all singing the Beatles’ “A Day In the Life” right about now, aren’t you?  Well, in fairness to Emily, she’s pretty young, and she may not even know who the Beatles are, then again one of them is singing with Kanye so. . . Maybe?  Anyway, we will leave it the way she wrote it.  Thanks again Emily for all of your hard work.

You get up in the morning. You drag yourself out of bed, into the car, and go to work. After all that, there is no work for you to do. The FLSA does not in any way require that employers compensate employees for coming in when there is no work to do if no hours are actually worked. Many employers do offer “show-up” or “reporting” pay for this situation, whether it be part of a collective bargaining agreement or as a voluntary benefit. Also, a few state laws require reporting pay: check with your labor attorney for details. Similarly, employers may offer “call-back” pay for cases where an employee is called back after the employee’s regular hours. Again, it’s not required by the FLSA, but it’s a relatively common term in a collective bargaining agreement.

The extra payments for showing up or being called back or reporting are not payment for hours worked, and so can be excluded from the regular rate. Of course, any part of the payment that is compensation for hours worked must still be included.

For example, say I get paid $10.00 per hour, but my employer and I have an arrangement where if I show up and there is no work to do, I will get paid for at least three hours of time. One day I show up and there is only one hour of work to do, so I do the hour of work and get paid $30.00. I worked for one hour, so $10.00 of the $30.00 is compensation for hours worked, which must be included in the regular rate. The other $20.00, however, is payment for hours not worked, and so need not be considered when calculating the regular rate. However, that $20.00 also cannot be credited towards overtime compensation since it is not payment for hours worked.

Back when I was a toy store salesperson, (I told you I was a toy store salesperson when we talked about bonuses and you were just as fascinated then as you are now) if the store needed extra help, there was a bargaining process to try to get us to come back in. Usually the currency was food, alcoholic beverages, or the use of the boss’s boat. Once it was to be allowed to take on the most coveted job in the store for the next day, which was to go out to a field, set up a bunch of kites, and supervise them all day. It all sounds like fun and games until a 12-foot ghost delta (that is a kite for those of you that aren’t geeks like me) is falling out of the sky and you have to keep it from hitting the horrified bystander children. I think call-back pay would have been a better option.  So this was fun (OK not really, but I got credit for it) and maybe Steve will “let” me do it again (but I hope not) so until then. Thanks, and now back to this blog’s regularly scheduled author.