Egress Regress: When Did Your Employer Commence Ownership of You?

Santa Clara, CAIt used to be that you started your workday precisely at 9 a.m. and ended it at 5 p.m., with an hour off for lunch. Other jobs were governed by the punch-clock. As of the instant you punched in, you were “on the clock” and on the job. At the point where you punched out, your work had ended and you were free to go. And there was always extra pay for extra hours, according to overtime pay laws.

But the culture has changed - and critics point to a workplace culture that suggests more and more of an employee’s life revolves around the workplace. Progressive operations have on-site fitness centers, where employees can work out before or after work and on their lunch breaks. There are high-end, on-site eateries where utilitarian cafeterias once stood. There are ATM machines and on-site daycare at the largest firms. The list goes on.

The result is the blurring of the lines that govern the start and the end of a workday - and by default, the division and erosion of a worker’s personal time. At a workplace that carries so many features and makes it easier to spend more time on site, it’s easier to slip into a habit of starting your workday earlier or ending it later. You’re already there. And who keeps track of this stuff anyway?

Overtime laws came into being long before the idea of work teams came to the fore. This is extremely prevalent in California, where the Silicon Valley gave birth to teams of workers and managers/owners that developed an all-for-one-and-one-for-all mentality, especially when it came to the quest toward changing the world as we know it through the development of the silicon chip and all that has grown from it.

Did those employees put in for overtime pay? True, in the IT sector there are provisions under California overtime law that exempt certain jobs from qualifying for overtime pay according to a pay threshold. Other jobs in other sectors are similarly governed. But not all jobs are classified correctly, and to that end the misclassification of jobs is a favorite ploy by business owners to save a bit of coin by not providing overtime pay that is legally required, were the job to have been classified correctly.

Donning and doffing (egress, regress) is another issue that is finding increasing traction with employee advocates. If an employer requires certain uniforms or safety gear to be worn while on the job, why is it the employee’s responsibility to undertake the donning or doffing of employer-mandated gear on the employee’s own time? To wit, the debate centers on when the workday actually starts: when an employee arrives at the workplace, clocks in and proceeds to don protective gear required by the employer for the job? Or when an employee, having already donned employer-mandated gear, is poised and ready to throw the switch and start the balls rolling? The answer appears obvious, but for an employer looking to protect his bottom line, those lines are blurred and often require vetting in the courts to sharpen them.

(Today is Halloween, a time when we dress up for fun. We don’t dress up for fun at work. We dress up because we have to, because it is part of the job…)

The egress/regress issue takes center stage in two recent class-action lawsuits launched by employees of Apple Inc., and Amazon. At issue, is the requirement by the employer to have employees available for security checks before they leave the building in an effort to prevent theft. As such, the employer has the right to such security screenings. But is it ethical to require employees to undertake these screenings on their own time? This forms the crux of the lawsuits involving Apple and Amazon, which are effectively unpaid overtime lawsuits. In requiring employees to linger in sometimes long lines before they can leave the building for lunch, and at the end of the day, employees allege they are doing so on their own time and thus constitute a violation of overtime laws.

Were employees to be paid for time spent in security checks - and at a sprawling facility like that of Amazon, lines can be long - the resulting overtime pay could result in several hundred or several thousands of dollars per year an employee is not receiving for an employee-mandated activity. Plaintiffs in the class actions maintain mandated security checks should be part of their workday.

The adoption of European employment models that suggest a life centered more toward work than leisure, together with a gradual weakening of union clout, appears to be giving employers the sense that they own a greater portion of an employee’s time than tradition and fairness would suggest. In Tokyo, for example, workers have been known to work 12 hours a day or longer in a job governed by a dispatch, or “haken” contract, in spite of contract terms that cite an eight-hour day. Often, the first 20 to 40 hours of overtime is interpreted as “service overtime” and is unpaid…

All the more reason to challenge instances of unpaid overtime in the courts.