When is hourly work not compensable?

Question: 

I have a question about my cleaning job at closing time after working for the whole day. My manager said that I would not be paid for cleaning time because it is just my responsibility. As you might know, it takes one or two hours to properly clean up the restaurant, but I do not get paid for that. It is not really fair. What is your advice on this?

clean restaurant floor
Answer: 

Restaurant duties can be divided into revenue tasks and cost tasks. Revenue tasks like cooking and serving food and beverage contribute to sales and are good to prioritize. Cost tasks like cleaning, receiving, bookkeeping, and training are important to the business’s overall function and key to the bottom line, but often get pushed aside or de-emphasized in favor of these cash-positive ones.

I can certainly see the appeal of explaining that duties like setup and cleanup are simply a job expectation and not part of the actual job of cooking or serving. But the Department of Labor would disagree. In some restaurants, especially in fine dining, for example, it has been a common practice for cooks to come in early to get a jump on their prep and station setup, but only clock in for an eight-hour shift. That practice has been challenged, however, via a series of high-profile lawsuits. Even where an hourly employee voluntarily offers to come in early or stay late, at no pay, to learn something new or make their workday easier, it is increasingly problematic.

While I’ve heard practices like this are often in place, the regulations are pretty clear that work is work and hourly employees need to be paid at minimum wage or higher. The U.S. Department of Labor specifically says, “Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.”

As always, local regulations may apply—consult with your attorney and restaurant association.

More on the regulations defining working hours here

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