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Can I be forced to clock out but stay at my job in Dallas-Fort Worth?

Fort Worth employment law firm for FMLA, discrimination, harassment, ERISA, wage claims, disability discriminationA 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 had a schedule to work the usual 8am-5pm shift. He would go to work each day with the expectation of enough work for eight hours. Sometimes the work would come in spurts. When work ran out the employer would make groups of employees clock out. They would require employees to stay in a break area until more work came in. Then they would clock back in and continue to work. During these periods the employer said if they left the break area they would lose their jobs.

Minimum wage in Dallas and Fort Worth

Presumably this is a situation that would only affect hourly employees. Under Texas and federal law, an employer must pay hourly employees for time spent under the employer’s control. Here, the employer forced employees to stay at work. If the employee is not free from the employer’s control, the employee must receive at least minimum wage for that time. Although the employer might 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 wages earned during a reserve period.

This is like what many employees receive in the way of paid breaks. Since the employees must stay on work premises and remain available to return to work, the employer continues to maintain control over the employee and therefore must pay for that time. Hourly employees do not earn wages on the basis of the volume of work completed (although it can factor into raises, bonuses, continued employment, etc.) but instead for the time subject to the employer’s control and/or working to the benefit of the employer.

On call time, minimum wage and overtime pay in Texas

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 this and truly being on call. 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 go on call as a condition of the job.

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 wages for being on call; however, if the employer sets controls then the employee may have entitlement to payment for hours on call. This particular employee may be on call; but conditioning the job on staying on the work premises means the employer continues control over the employees. Therefore likely entitled to some wages during this time.

If you are in a similar situation, contact The Kielich Law Firm.

Adam Kielich is an employment attorney, divorce lawyer and principal attorney at The Kielich Law Firm in Bedford, Texas. The Kielich Law Firm represents clients in employment law and family law matters across the Dallas and Fort Worth area. Attorney Adam Kielich helps clients with employment discrimination, wrongful termination, overtime pay, FMLA, contested and uncontested divorce, modifications, QDROs and more.