Employment Law Questions? Ask an Employment Lawyer.
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There is an extremely strong presumption that when an employee is at work they are working and, thus, must be paid for their time. Technically if an employee was performing no work at all (i.e. completely asleep), this would not be considered compensable time and you would not need to pay for it. However, sound practice would be to still pay the employee for this time, as the consequences of a DOL finding that you intentionally withheld earned wages vastly exceed what you will save by not paying this employee for a couple hours of their time. As an employer, you must pick your battles, and this is not one that is worth the fight.
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The Labor Code is heavily geared toward protecting employees, not employers. However, the law does only require you to pay for time an employee is actually working. The problem is the extremely strong presumption in favor of any time an employee spends on the clock being compensable work time. Could you refuse to pay on the ground that the employee was not actually working but instead was sleeping? Sure you could. I’m certain that the employee would dispute being actually asleep and file a wage claim, and you would have yourself a DOL investigation that could result in penalties being imposed upon you if the DOL finds in the employee’s favor. What I’m trying to explain is that this is not worth it for you.
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