Is it legal for company make you use 8 hours of vacation and work for free for a small time period, each day?

Question

I work for a contractor to the federal government in West Virginia. During a government shutdown, my company is making us use eight hours of vacation, per day, which is legal in the state of WV. However, my company is also telling us that we need to check our government email during the shutdown, for any updates they may send and go into the HR system to input the eight hours of vacation, on a daily basis. When I inquired about what charge code we should bill for that work, I was told that, since this would amount to less than 15 minutes per day, that it is not billable. I am an exempt employee, but I am basically treated as hourly, as my hours worked and vacation must add up to the pay period minimum.

1) We are not supposed to do work of any kind, during a shutdown. Wouldn't checking government email and filling out a time card on a daily basis violate this?

2) We bill in half hour increments. Would checking email and doing time card activity be 0.5 hours of work, leaving a total of 7.5 hours VAC and 0.5 hours of work, per day? I know that this isn't a huge amount of time, but the principle of making us burn vacation while working for free seems to be wrong.

I have checked with both the West Virginia Division of Labor, who told me that I needed to address this with the US Department of Labor, and the US Department of Labor, who told me that I need to address this with the West Virginia Division of Labor.

I was trying to get my question answered without getting an attorney involved, or at least an answer as to whether talking to an attorney may be worthwhile, but have had no luck, so far.

Thanks.

Answer 1

As a private employee who is classified exempt, your benefits and compensation are largely a matter of the contract between you and your employer.

Government workers (those employed directly by the government, not contractors) are strictly prohibited in doing any work while furloughed by the Antideficiency Act. This includes checking official government email. However, you are not a government worker.

Non-exempt (hourly) workers must be paid for all regular and expected duties that they are required or expected to fulfill, and being told to check email qualifies as work. An employer is sometimes able to not record and pay for certain work done that is considered de minimis, but the legal standard here is that the work cannot be directed by the employer or be a regular part of the job, and the work must truly be short-term (seconds to a few minutes). Checking email off-the-clock counts as compensable work for non-exempt employees, and this establishes that checking email is considered work. However, as an exempt employee the pay provisions here do not apply.

In general, employers may or may not offer vacation time. If they do offer vacation time, they are not required to offer any specific kind of vacation time and may place reasonable restrictions on how and when vacation time can be used. There are some FLSA regulations on how and when vacation time may be counted, but these only apply to non-exempt employees.

As a result, because you are exempt, the main controlling factor here is your employment contract and what it says about vacation time. In West Virginia your employer is free to change their vacation time policy unilaterally, but they must honor any vacation time accrued under a previous policy without changes. If your employment contract says that you are required to check your email or otherwise stay in contact during vacation, then there's not a lot you can do here.

There are several more laws that apply specifically to some federal contractors under certain conditions, and you can find a summary here. Several of these require that federal contractors be paid at least minimum wage for work they perform, so if your vacation time is being used to avoid paying you for a day of work then your employer may be running afoul of the law here by requiring you to check your email.

Note that the question of which account to bill hours to is an internal question and not regulated by law. Your employer has you assign billable hours so they can keep track of which government contract to charge your time to. This is done for their benefit, not for yours. They must still comply with your employment contract, including full pay and benefits, regardless of where you allocate your hours (unless the contract states otherwise).

Answer 2

Checking email, even if it's an email system provided by the employer, for updates on your work situation is not working time.

You aren't being asked to communicate actively with customers or clients, or to complete any activity that has benefit to the employer. Your checking and your time-filling are both for the purpose of ensuring you know what is happening and can get paid.

You can stop checking your email, and then miss the notification that you are resuming work, and be disciplined for not keeping yourself aware, or you can stay informed and be happy that you receive daily updates on something as important as whether you need to come to work.