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Ready for the Minimum Wage Hike? (Trey Cooper Commentary)

3 min read

On Nov. 6 Arkansas voters approved Arkansas Issue 5, the Minimum Wage Increase Initiative, raising the state’s minimum wage from $8.50 an hour to $9.25 an hour. The change follows a similar incremental raise that was approved by voters in 2014.

Issue 5 will incrementally raise the minimum wage to $11 an hour over the next three years. The law takes effect Jan. 1, 2019.

Issue 5 essentially adds the following language to Ark. Code Ann. § 11-4-210 regarding minimum wage:

Beginning Jan. 1, 2019, every employer shall pay each of his or her employees wages at the rate of not less than $9.25 per hour.

Beginning Jan. 1, 2020, the rate increases to not less than $10 per hour. Beginning Jan. 1, 2021, the rate increases to not less than $11 per hour except as otherwise provided in the legislation.

First, employers should understand whether Arkansas’ minimum wage applies to their business. All employers in Arkansas with four or more employees in any workweek are covered unless exempt. The question of what employees qualify as exempt is beyond the scope of this commentary. If you think your employees may be exempt from the state’s minimum wage laws, you should discuss the issue with a lawyer.

A review of what time is compensable may help businesses understand what changes may be necessary to handle the increase in minimum wage. Arkansas law requires employers to pay employees for all time worked.

Work not requested but “suffered or permitted” is work time and subject to compensation. It’s the employer’s duty to exercise control over employees to ensure that work isn’t performed that the employer doesn’t want performed. For example, employers must count time spent checking and sending emails from home as hours worked. Arkansas law requires employers to count short rest periods of 5 to 20 minutes as working time.

Generally, meal time is not considered work time if the employee is not required to perform any duties, whether active or inactive, while eating. Attendance at lectures, meetings and training programs is considered work time unless four criteria are met:

  • Attendance must be out-side the employee’s regular working hours.
  • Attendance must be voluntary.
  • The course or training is not directly related to the employee’s job.
  • The employee doesn’t perform any productive work.

While all travel time that is work-related must be counted as hours worked, travel time between home and work generally is not compensable. Generally, time spent walking to and from a time clock is not compensable unless the employee engages in an integral and indispensable activity prior to walking to the time clock. On-call time is not compensable unless the employee is unable to use the time effectively for his own purpose. Time spent passing through a security check is generally not considered compensable.

In addition to helping avoid litigation over unpaid wages, understanding what time is compensable may help a business become more efficient in keeping up with its employees’ compensable time.

Becoming more efficient may be helpful to employers in absorbing the initial shock of the increased minimum wage.


Carl F. “Trey” Cooper III is of counsel at the Dover Dixon Horne law firm in Little Rock. Email him at TCooper@DDH.law.
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