Employers should prepare for the minimum wage increase

The Arkansas Department of Labor recently issued amended notice posters for the Arkansas minimum wage increase to $9.25 per hour beginning on January 1, 2019.

By law, employers subject to the Arkansas Minimum Wage Act must display the poster where employees are likely to see it. Arkansas Code Annotated § 11-4-216 provides, “Every employer . . . shall keep a summary of this subchapter, approved by the Director of the Department of Labor . . . or a summary of the regulations approved by the director, posted in a conspicuous and accessible place in or about the premises wherein any person subject thereto is employed.”

In November 2018, Arkansas voters approved the ballot initiative known as Arkansas Issue 5, or the Minimum Wage Increase Initiative. Specifically, Issue 5 adds the following text to Arkansas Code Annotated § 11-4-210 regarding minimum wage:

Beginning January 1, 2019, every employer shall pay each of his or her employees wages at the rate of not less than nine dollars and twenty-five cents ($9.25) per hour, beginning January 1, 2020 the rate of not less than ten dollars ($10.00) per hour and beginning January 1, 2021 the rate of not less than eleven dollars ($11.00) per hour except as otherwise provided in this subchapter.

Pursuant to Issue 5, the minimum wage will incrementally raise to $11.00 per hour over the next three years. The first increase will raise the minimum wage from $8.50 per hour to $9.25 per hour and takes effect on January 1, 2019. On January 1, 2020, the next incremental increase from $9.25 per hour to $10.00 per hour takes effect. Finally, on January 1, 2021, the minimum wage will increase from $10.00 per hour to $11.00 per hour.

Employers should examine all activities their employees are engaged in before and after the regularly scheduled workday to ensure all minimum wage laws are being followed. What follows is a list of best practices for employers to help avoid costly wage and hour litigation:

• Require employees to clock in before changing into protective equipment and clock out after changing out of protective equipment.

• Pay employees for commute time if the employee must return to work in an emergency.

• If an employee has a company vehicle, enter into a written agreement with the employee stating that commute time is non-compensable.

• Assume all walking time is compensable after an employee changes into protective equipment.

• Employees who are required to remain at the company facility while on-call should be paid for time they are waiting.

• Employees who are required to carry a pager or phone are not required to be compensated for that time unless the restrictions on their activities and/or frequency of interruption is significant.

• Employees should be paid for all time spent responding to calls.

• Time spent responding to emails should be compensated, and therefore, employees should be prohibited from accessing company email while not on duty.

• Do not allow employees to complete paperwork or perform computer work prior to starting their shift (clocking in).

The prior listed best practices are not exhaustive. Understanding what time is compensable may help employers avoid wage and hour litigation. The first step in making sure you comply with the law is obtain the free notice poster from the Arkansas Department of Labor and post it in a conspicuous and accessible place.

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Editor’s note: Trey Cooper is an attorney with the Little Rock-based law firm of Dover Dixon Horne. The opinions expressed are those of the author.