DEAR CARRIE: I work for a school bus company and would like to know if we must be paid when we are sent to take a random drug test off premises? Our employer doesn’t think so. — Test Peeve
DEAR TEST: If you are an hourly employee, you probably should be paid for that time. Here’s what the U.S. Department of Labor’s website says:
“Employers often require their employees to take certain tests as they begin employment or on a periodic basis during their employment, such as physical examinations, fingerprinting and drug testing. Whenever you impose special tests, requirements or conditions that your employee must meet, time he or she spends traveling to and from the tests, waiting for and undergoing these tests, or meeting the requirements is probably hours worked.”
And whether the tests are taken during the workday or after hours has no bearing on the payment issue.
“It does not matter whether these tests are scheduled during your employee’s normal working hours or during his or her non-working hours. Time spent in these activities is time during which the employee’s freedom of movement is restricted for the purpose of serving your business and during which he or she is subject to your discretion and control.”
This issue is considered akin to mandatory training. Companies can legally avoid paying for training if it meets all four of the following criteria: It is voluntary; it is outside normal hours; it is unrelated to the job, and it is the only task being done at the time.
Well, your testing isn’t voluntary and it’s definitely job related. So you most likely have to be paid for the time.
This information applies to hourly, or nonexempt, employees because they have to be paid for all the time they work. And it’s worth noting that the information doesn’t apply to job applicants who are required to take drug tests as part of a job offer. For more information, call the Labor Department at 516-338-1890 or 212-264-8185.
DEAR CARRIE: My husband has worked for a local company as an electrical contractor for some time. When he started, he would drive his personal vehicle to the shop and then leave for worksites in the company van. His day would begin at 8 a.m., when he arrived and punched in, and end at 4:30, when he parked the company van, punched out and headed home in his car. He was considered on the clock during the time he traveled to worksites and back to the office.
A few years ago, his boss decided that employees should use a van to drive to and from the office. Many days the office calls him and tells him he is “on the job” for the following day, which means he has to report to the job by 8 a.m. The worksites are often an hour from our house. So he has a much larger commute. What’s worse, he is not paid for the longer commuting time. Is this legal? — On the Clock?
DEAR ON THE CLOCK: Normally, commuting time to and from work is not considered hours worked. But as with any regulation, exceptions come into play. In order for the commuting time in the company van to be excluded legally from hours worked, the Labor Department says the following criteria must be met: The vehicle must be of a type normally used for commuting; the employee is able to use a normal route for the commute; the employee does not incur any additional costs using the vehicle; the home-to-work travel is within the employer’s normal commuting area, and the use of the vehicle used for commuting is subject to an agreement between the employee — or his or her representative — and the employer.
For more information, call the Labor Department at the numbers listed above.