Can I be forced to clock out but stay at my job? Answer from a Fort Worth Employment Attorney
A question was asked whether an employer could schedule an employee for a set of hours and if there was no work to do, have the employee clock out but be required to stay in a particular area of the work premises until he or she was needed to clock back in, with the threat of termination if the employee left work premises. There are a lot of different versions of this same basic situation from requiring an employee to clock out for lunch but stay at his or her workstation or desk to take calls to requiring an employee to clock out but remain on premises in case more work comes in to making the employee constantly wait to work at the office or worksite but clock in and out as certain tasks are performed.
In Texas, the answer is generally no, an employer cannot do this.
To elaborate on the situation, the employee was scheduled to work the usual 8am-5pm shift. He would go to work each day with the expectation of enough work for eight hours. However, sometimes the work would come in spurts and when work ran out the employer would make groups of employees clock out. They would then require the employees to stay in a break area until more work came in and they would clock back in and continue to work. The problem is during these periods where the employees were clocked out, they were told if they left the break area, let along the work site, they would be fired.
Presumably this is a situation that would only affect hourly employees. Under Texas and federal laws, an employer must pay hourly employees for the time spent working or under the employer’s control. Here, the employee is being forced to stay at work. If the employee is not free from the employer’s control, the employee needs to be paid at least minimum wage for that time. Although the employer might be able to redefine the position as one that pays minimum wage during these reserve periods, the employer cannot pay nothing or dock the employee’s pay during other hours to account for what is paid during a reserve period.
This is like what many employees receive in the way of paid breaks. Since the employees are often required to stay on work premises and be available to return to work, the employer continues to maintain control over the employee and therefore must pay for that time. Hourly employees are not paid on the basis of the volume of work completed (although it can factor into raises, bonuses, continued employment, etc.) but instead for the time in which they are subject to the employer’s control and/or working to the benefit of the employer.
Some might say that this particular employee’s situation is like being “on call” during off hours. I would agree. However, there is a difference between how employees are treated when they are “on call” for their employer. There are a few positions where the law permits employees to be limited in what they can do or how quickly they must respond to calls to return to work. Additionally, salaried employees sometimes may be required to be on call as a condition of the work they are paid for. However, hourly employees are different. Hourly employees are typically free to do and go wherever they want while on call. In that case, they do not need to be paid for being on call; however, if the employer does set controls (for example, requiring they be available to appear in fifteen minutes of a call) then the employee may actually be entitled to payment for the hours in which he or she is on call. This particular employee may be on call but having the job conditioned on staying on the work premises means the employee is subject to the employer’s control and therefore likely entitled to some wages during this time.
If you are in a similar situation, feel free to contact The Kielich Law Firm so I may determine if you are entitled to wages your employer is avoiding paying you.