State:

National
The federal Fair Labor Standards Act (FLSA) requires that a minimum wage be paid for all hours an employee is “suffered or permitted” to work and that an overtime wage be paid for all hours “worked” over 40 in a week. The FLSA does not specifically define “hours worked” or place a limit on the number of hours an employee may work; it requires only that overtime be paid for any hours worked over 40. Generally speaking, work time includes all time that employees spend engaged in the principal activities that they are employed to perform. Hours worked also includes waiting time, travel time, other than time spent commuting to and from the employee’s regular place of work; breaks or meal periods that are less than 20 minutes long; and time the employee is required to spend in training, at seminars, or in meetings. Hours worked for purposes of the FLSA do not include waiting time, time spent on call, or time when an employee is required to carry a pager or cell phone, provided the employee is otherwise free to effectively use the time for his or her own personal purposes. The FLSA does not obligate employers to pay employees for holidays, vacation, or sick days.
Check state law requirements. Many states have laws on hours of work that are more strict than federal requirements. Employers must follow the law that is most favorable to the employee.
The general rule is that work time begins when the employee begins doing activities on the employer's behalf and ends when those activities conclude. For example, normal commuting from home to work is ordinarily not considered work time, whereas time spent walking from the time clock to the workstation is generally compensable.
Changing into uniforms. There have been many legal battles about whether employees should be compensated for the time it takes to change into the employer's required uniform. Generally speaking, time spent changing into a uniform on the employer's premises is considered work time, while time spent changing at home is not. Taken one step further, employees with elaborate uniforms/costumes (such as a Disney® character or a Las Vegas showperson) should generally be paid for the time spent changing because it is for the employer's benefit, whereas employees with simple uniforms (e.g., mechanic's overalls) would not be compensated. The U.S. Supreme Court has ruled unanimously that employers must compensate workers for the time they spend walking to and from the production floor after donning and before doffing required safety gear. The Court also said the time spent waiting to doff the required safety gear is compensable under the FLSA (IBP, Inc. v. Alvarez,, 126 S.Ct. 514 (11/8/05)).
On January 27, 2014, the U.S. Supreme Court held that, pursuant to the terms of a collective bargaining agreement (CBA), the time that employees spend putting on and taking off their mandatory protective gear is not compensable under the FLSA (Sandifer v. U.S. Steel, Corp., No. 12-417). The FLSA states that hours worked do not include any time spent in changing clothes at the beginning or end of each workday which was excluded from working time under a bona fide collective-bargaining agreement. Steel workers from the U.S. Steel plant in Gary, Indiana. sought payment in court for the time they had spent each day donning and doffing their protective gear. U.S. Steel argued, in contrast, that the CBA specified that the donning and doffing was not compensable.
The U.S. Supreme Court held that “The time [workers] spend donning and doffing their protective gear is not compensable.” The Court emphasized that the term “clothes” should be “interpreted as taking [its] ordinary, contemporary, common meaning.” The Court further stated that “it is evident that the donning and doffing in this case qualifies as ‘changing clothes.’ Of the 12 items at issue, only 3—safety glasses, earplugs, and a respirator—do not fit within the elaborated interpretation of ‘clothes.’” The Supreme Court guided other courts to ask “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’ If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items ,.... even if some clothes items were also donned and doffed. But if the vast majority of the time is spent in donning and doffing “clothes” as defined here, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.”
This ruling has cleared some uncertainty for unionized employers. Undeniably, the decision makes it difficult for unionized employees to recover under the FLSA for time spent donning and doffing protective gear if the terms of a CBA specifically exclude compensation for such time, or if the parties’ custom or practice also excludes compensation for such time.
Compensation for coming in a few minutes early or staying a few minutes late. Is this compensable time? The general rule is that employees who voluntarily come in before their regular starting time or stay after their regular stopping time must generally be paid only for the periods in which they are “on the clock” and working. For example, the Supreme Court has ruled that compensable work time does not include the time employees spend waiting to don the first piece of gear that marks the beginning of the workday (IBP, Inc. v. Alvarez, 126 S.Ct. 514 (11/8/05)). To avoid litigation, employers should make certain that their employee handbooks clearly state that the company pays only for the actual time spent working. For those employees using time clocks, see the next page for rounding practices.
The key question for determining if an employee must be compensated for waiting time and on-call time is whether the time in question can be used effectively for the employee's personal purposes (which depends on the facts of each individual case).
An employee who is on duty and waiting to be assigned a task is considered to be working. Generally, an employee is on duty when the time is controlled by the employer and is of relatively short duration. However, when the employee is completely relieved of duty (i.e., is allowed to leave the premises and is told exactly when to return), the time need not be counted as hours worked.
Examples of compensable waiting time. The time an employee spends waiting for a meeting to begin, the time a factory worker spends talking with coworkers while waiting for a machine to be fixed, the time a repair person spends waiting for the customer to get the premises ready, must generally be counted as work time.
Example of noncompensable waiting time. If employees are completely relieved of duty for a period of time that is long enough to enable them to use the time effectively for their own purposes, such time need not be counted as hours worked. In such situations, the employees must be told in advance that they may leave the job and that they will not have to commence work until a specified hour. So if a needed machine breaks and cannot be fixed for 4 hours, the employee does not have to be compensated for the time spent waiting if the employer allows the employee to leave and return at a later time.
The U.S. Supreme Court unanimously decided in Integrity Staffing Solutions, Inc. v. Busk, No. 13–433 (2014)that employers do not need to pay employees for time employees spend in postshift security screenings under the FLSA. In this case, employees staffed by Integrity Staffing Solutions who package products for Amazon.com were required to pass through a security screening before leaving work each day. The postshift screening process took almost a half -hour after each workday. The employees filed a class action lawsuit claiming that they should be paid for this time.
The Supreme Court decided that the process of going through the security screening is not compensable under the FLSA. First, the Court reasoned that the security screenings were not a principal activity of the job because “Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Furthermore, the Court found that the security screenings were not “integral and indispensable to the principal activities” of the job and were, therefore, not compensable. The Court stated that an “activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” In this case, the screenings were not “integral and indispensable” to the job, because even if Amazon.com had stopped the postshift screenings, the employees would have been able to fully carry out their job functions. Stopping the security screenings would not have altered the employees’ ability to complete their work.
The Court noted two more interesting points. First, whether a preliminary or postliminary activity is required by the employer is not determinative as to whether it is “integral and indispensable to the principal activities” of the job. In other words, it may be required and still not be “integral and indispensable.” Second, just because Amazon.com could have greatly reduced time employees spent in the screening process by increasing the number of screeners does not mean that the employees should be paid for the time spent during security screenings. “The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.”
On-call time is different than waiting time, as it usually means that the employee is not on the employer's premises. On-call time must be counted as hours worked when the employee is required to remain on call so that his or her time is so restricted that the employee cannot use it effectively for personal purposes.
Pagers, cell phones, and other mobile contact devices. Modern technology allows employers and employees to be in constant contact, and most companies use a variety of electronic devices to notify on-call employees to return to duty. However, simply carrying the device does not usually qualify as hours worked. If the employee is not free to effectively use the time for his or her own personal purposes, the time should be counted as hours worked.
Commuting to and from work is generally not counted as work time. However, if an employee is sent on a special 1-day assignment to another location, the time spent traveling to and from that location must be counted as work time. Other travel time during a normal workday must be counted as hours worked when it is part of the principal job activity or when travel is necessary from jobsite to jobsite.
Travel away from home that includes being away overnight is work time when it cuts across the employee's workday. The travel time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonworkdays. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is work time on Saturday and Sunday as well as on the other days. Time spent for regular meal periods is not counted. Time spent in travel away from home outside of regular work hours as a passenger on an airplane, train, boat, bus, or automobile is not work time.
Example. If an employee who normally works 9 a.m. to 5 p.m. Monday through Friday is a passenger on a plane departing for San Francisco at 9 a.m. on Saturday, the time spent traveling is work time because it cuts across normal working hours. It does not matter that Saturday is not a normal workday. However, if the plane departed at 6 p.m., the travel time would not be counted as compensable work time because the employee would be traveling outside of normal working hours.
Hourly employees who drive a company vehicle home at the employer's direction or for the employer's benefit (e.g., so they can respond to calls) must be paid for the time it takes to drive home and to respond to customer calls. However, if the vehicle is taken home primarily for the employee's convenience, the travel time need not necessarily be counted as hours worked. Please see the national Travel Time section.
There are other times when employers must pay employees for time not spent working. For example:
Meal periods. There is no federal law requiring meal breaks in industries or offices. However, breaks of up to 20 minutes must be counted as work time, and those that last more than 20 minutes need not be counted as work time, provided the employee is relieved of duty. This is true even if the employee is not permitted to leave the premises.
Rest periods. Short rest breaks of 5 to 20 minutes are common in the workplace. Rest breaks are not required by federal law, but if they are offered, they must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may last for only a specific length of time, that any extension of the break is contrary to the employer's rules, and that any extension of the break will be punished.
Sleeping time. Under certain conditions, sleeping time is compensable work time. An employee who is required to be on duty for fewer than 24 hours is working, even though permitted to sleep or engage in other personal activities when not busy. In the case of employees on duty for 24 or more consecutive hours, the employee and employer may agree to exclude from hours worked meal periods and a scheduled sleeping period of 8 hours or less, provided adequate sleeping facilities are furnished and the employee can typically enjoy an uninterrupted night's sleep. If the sleep period is interrupted by a call to duty, the interruption time is considered hours worked, and if the employee cannot get at least 5 hours of sleep, the entire period must be counted as work time.
The U.S. Department of Labor has released an opinion letter providing guidance on sleep time for group home employees. If a group home employee permanently resides on the premises, the employee does not need to be paid for sleep time, even though the employee is not free to leave the premises during that time, if:
• The employee is free to leave the premises during nonsleep time for his or her own purposes, and can engage in normal private pursuits during nonduty time other than sleep time.
• The employee is paid for all time he or she is called to work during sleep time.
• The employee is paid for the entire sleep period if he or she is interrupted and called to duty to the point where the employee cannot get at least 5 hours of sleep during the sleep period.
• The employee typically works some hours during nonsleep time.
• The employee is paid for all work performed during nonsleep time.
Split shifts. If an employee is entirely free to use the time off between work periods, it need not be counted as work time.
Training programs, lectures, and meetings. If attendance at these functions is required, the time must be counted as work time. If employees attend an independent school, college, or trade school after hours on their own initiative, the time is not counted as hours worked, even if the courses are related to the job.
Holidays, vacations, and sick days. Holidays not worked, vacation days, and sick days are not counted as hours worked. Unless there is an agreement to the contrary, employers have no obligation to pay for such time.
Medical attention. The time an employee spends waiting for and receiving medical attention on the premises or at the direction of the employer during normal working hours on days when the employee is working must be counted as work time.
Report-in pay. Federal law doesn't require employers to pay employees who report to work but are unable to work because of some unusual condition at the workplace. However, many states and industries require report-in pay.
Please see the state Hours of Work section.
Suggestion systems. The time an employee spends outside of regular working hours in developing suggestions under a general suggestion system is not counted as work time. However, if an employee is permitted or assigned to work on suggestions during regular working hours, the time must be counted as work time.
Working from home. Employees who work at home must be paid only for the time that they are working. Other activities, such as eating, sleeping, and entertaining, are treated the same as for those who work in the office.
Extra pay for working during weekends is generally a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend work. However, covered, nonexempt employees must be paid at least 11/2 times their regular rates of pay for the time worked over 40 hours in a workweek whether worked on regular workdays or on the weekend.
Extra pay for working night shifts is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for night work. However, the FLSA does require that covered, nonexempt workers be paid not less than 11/2 times their regular rates of pay for the time worked over 40 hours in a workweek.
Training programs conducted during regular working hours constitute work time and must be compensated as such, according to the FLSA. After-hours training need not be compensated if:
• Attendance is entirely outside normal working hours and is voluntary (attendance will not be found voluntary if the employee is led to believe that attending is critical to his or her job),
• The training is not directly related to the employee's present job, and
• The employee does not do any productive work during the program.
A training program is considered directly related to the job if the training is designed to help the employee handle the present job more effectively (but voluntary attendance at school outside the workplace, after hours, is not work time, even if it is related to the employee's present job). Time spent in training for a new job or in the development of new skills is less likely to be classified as compensable work time.
Online training. If an exempt employee does online training at home, there is no problem, and an employer will pay the employee's usual weekly salary. If a nonexempt employee does online training at home, and if the training is mandatory or job related, which it often is if the employer is providing the training, employers will have to pay nonexempt employees for this time.
Employers may have to pay for the time taken by nonexempt employees to read and send e-mails after work hours. Under the de minimis rule, employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours, if, as a practical administrative matter, such time cannot be precisely recorded. If employees are checking e-mails for 2 or 3 minutes, employers will likely not have to pay for this time. But if employees are spending 10 to 15 minutes after work hours, employers will have to pay employees for this work time. Many employers provide PDAs only to exempt employees and limit after-hours e-mail checking to exempt employees. If a business needs to provide nonexempt employees with PDAs, have a company policy prohibiting after-hours use, monitor employee use of the PDAs, and discipline employees for violating the policy. Remember that even if employees violate a company policy by reading and writing e-mails after work hours, you may discipline the employees, but you still have to pay them for this time.
Federal law restricts the number of hours that minors (under the age of 18) may work.
Minors under the age of 16. Minors under the age of 16 may only work:
• Outside of school hours
• For 18 hours during any week when school is in session
• For 40 hours during a week when school is not in session
• For 3 hours during any day when school is in session
• For 8 hours on a day when school is not is session
• From 7 a.m. to 7 p.m. on any day, except from June 1 through Labor Day, when the child may work from 7 a.m. to 9 p.m.
Exceptions. Attendants at professional sports events may work beyond the weekly time and hour restrictions but not during school hours. Other exceptions to the restrictions for 14- and 15-year-old workers may be made for students who are enrolled in a work experience or career exploration program during school hours.
Minors over the age of 16. There are no federal limits on working hours for 16- and 17-year-old workers. Many state laws do restrict working hours for workers in this age group, however, with stricter requirements applicable to employment on school days or evenings before school days.
Check state law. Most states regulate at least some part of child labor. State laws that are more restrictive than federal laws must be followed.
Please see the state Child Labor section.
Employers are required to keep records of hours worked, wages paid, and other conditions of employment. The FLSA does not require that time clocks be used to record work time; handwritten logs are generally acceptable.
Rounding practices. In some industries, the practice is to round off employees' starting time and stopping time to the nearest 5, 10, or 15 minutes. Theoretically, this arrangement averages out so that the employees are fully compensated for all the time they actually work. This practice may be acceptable unless, over time, it can be shown that employees are not properly compensated for all the time they have actually worked.
Employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours if, as a practical administrative matter, such time cannot be precisely recorded. This rule applies only where industrial realities justify the practice and the periods of time involved are uncertain and amount to a few seconds or minutes. An employer may not fail to count any part, however small, of the employee's fixed or regular work time.
Many employers are following the lead of some of the major corporations that have adopted a corporate culture that emphasizes a work/life balance. These companies recognize the demands that modern life places on a family structure, whether headed by two wage earners or one. Flexible workdays and schedules, including telecommuting options, can play an important part in helping a parent meet family obligations such as attendance at school meetings and medical appointments.
Compensatory time allows public employers to offer their employees additional time off instead of paying overtime. The additional time off must be given at 11/2 times the amount of time worked over 40 hours. For example, an employee working 42 hours in a week has earned 2 hours of overtime. Instead of compensating the employee for that 2 hours of overtime, the employee is allowed to take 3 hours of compensatory time at a later date (2 overtime hours times 1.5 equals 3 hours of compensatory time).
Legislation has been introduced in Congress in the last few years, and again this year, that would extend compensatory time to the private sector. The measure seems to gain additional support each year as it would be a way for employers to theoretically cut costs by avoiding overtime pay.
The Federal Motor Carrier Safety Administration (FMCSA) limits the number of hours a driver may operate a commercial motor vehicle during each workday, the length of the workday within which driving may occur, the minimum off-duty period before starting the next workday, and the cumulative number of on-duty hours during the workweek after which a commercial motor vehicle may not be driven. FMCSA has issued an interim rule that allows interstate truckers to drive 11 hours per day within a 14-hour, nonextendable window after having 10 consecutive hours off duty. Drivers may restart their calculations of the weekly on-duty time limits after they have had at least 34 consecutive hours off duty (also called the 34-hour restart). The 34-hour restart provision gives truckers the opportunity to drive 77 hours in a 7-day period or 88 hours in an 8-day period.
The healthcare industry includes hospitals, residential care establishments, skilled nursing facilities, nursing facilities, assisted living facilities, and intermediate care facilities for mental retardation and the developmentally disabled. The following examples provide guidance regarding common FLSA violations found by the DOL during investigations relating to the failure to pay healthcare employees for all hours worked.
Example 1. An intermediate care facility docks employees by a full quarter hour (15 minutes) when they start work more than 7 minutes after the start of their scheduled shift. Does this practice comply with the FLSA requirements? Yes, as long as the employees’ time is rounded up a full quarter hour when the employee starts working from 8 to 14 minutes before his or her shift or if the employee works from 8 to 14 minutes beyond the scheduled end of the shift.
Example 2. An employee’s schedule is 7 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break. The employee receives overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional overtime compensation for the 1.25 hours over 40.
Example 3. An employer only records and pays for time if employees work in full 15-minute increments. An employee paid $10 per hour is scheduled to work 8 hours a day Monday through Friday, for a total of 40 hours a week. The employee always clocks out 12 minutes after the end of her shift. The employee is paid $400 per week. Does this comply with the FLSA? No, the employer has violated the overtime requirements. The employee worked an hour each week (12 minutes times 5) that was not compensated. The employer has not violated the minimum wage requirement because the employee was paid $9.75 per hour ($400 divided by 41 hours). However, the employer owes the employee for 1 hour of overtime each week.
Example 4. A licensed practical nurse (LPN) works at an assisted living facility that has a “sister facility” 20 miles away. There have been times that the LPN has been asked to fill in for someone at the other facility after she completes her shift at her normal worksite. It takes her 30 minutes to drive to the other facility. The travel time is not recorded on her time sheet. Is this a violation of the FLSA? Yes. The travel time must be considered part of the hours worked.
Example 5. A residential care facility offers specialized training on caring for Alzheimer's disease residents. There are two workshops: one in the evening for the day shift and one during the day for the evening shift. All employees are required to attend. Is this compensable time? Yes, because the training is not voluntary and is related to the employees’ jobs.
Example 6. The administrator of a nursing home says specialized patient care training is voluntary, but the nursing supervisors expect all employees on their units to attend and schedule times for each employee to go. Is the time considered hours worked? Yes, the time would be considered hours worked. When the nursing supervisors expect all unit employees to attend and schedule their times, it is not truly voluntary.
Example 7. The dishwasher decides to go to the Alzheimer’s training session after his shift. Must the administrator pay for the dishwasher’s time spent at the training session? No, because all four criteria above are met. It is not considered hours worked.
Example 8. The administrator provides a Tai Chi course to residents and allows employees to attend during their off-duty hours. Do employees have to be paid for the time they attend this course? No, the employees do not have to be paid because attendance is voluntary and the other three criteria are met.
Example 9. A skilled nursing facility automatically deducts one-half hour for meal breaks each shift. Upon hiring, the employer notifies employees of the policy and of their responsibility to take a meal break. Does this practice comply with the FLSA? Yes, but the employer is still responsible for ensuring that the employees take the 30-minute meal break without interruption.
Example 10. An hourly paid registered nurse works at a nursing home that allows a 30-minute meal break. Residents frequently interrupt her meal break with requests for assistance. Must she be paid for these frequently interrupted meal breaks? Yes, if employees’ meals are interrupted to the extent that meal period is predominately for the benefit of the employer, the employees should be paid for the full 30-minutes.
Example 11. Many third-shift nursing home employees who smoke prefer to take three 10-minute unpaid smoke breaks instead of their 30-minute unpaid meal break. Is it okay for them to substitute the smoke breaks for their meal break? No, the employee must be compensated for the smoke breaks.
Example 12. An assisted living facility has four LPN wellness coordinators who are paid hourly. They rotate being on call each week. They are required to carry a cell phone and be within 45 minutes of the facility when they are on call. They are not paid for all time spent carrying the cell phone but are paid for time spent responding to calls and time when they have returned to work at the assisted living facility. Does this comply with the FLSA? Yes.
Example 13. A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time and one-half for all FLSA overtime hours worked.
Example 14. An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even though she worked at home and the time was unscheduled.
Last reviewed on January 8, 2015.
For additional information, employers may contact:
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210
866-4-USA-DOL
Related Topics:
National
The federal Fair Labor Standards Act (FLSA) requires that a minimum wage be paid for all hours an employee is “suffered or permitted” to work and that an overtime wage be paid for all hours “worked” over 40 in a week. The FLSA does not specifically define “hours worked” or place a limit on the number of hours an employee may work; it requires only that overtime be paid for any hours worked over 40. Generally speaking, work time includes all time that employees spend engaged in the principal activities that they are employed to perform. Hours worked also includes waiting time, travel time, other than time spent commuting to and from the employee’s regular place of work; breaks or meal periods that are less than 20 minutes long; and time the employee is required to spend in training, at seminars, or in meetings. Hours worked for purposes of the FLSA do not include waiting time, time spent on call, or time when an employee is required to carry a pager or cell phone, provided the employee is otherwise free to effectively use the time for his or her own personal purposes. The FLSA does not obligate employers to pay employees for holidays, vacation, or sick days.
Check state law requirements. Many states have laws on hours of work that are more strict than federal requirements. Employers must follow the law that is most favorable to the employee.
The general rule is that work time begins when the employee begins doing activities on the employer's behalf and ends when those activities conclude. For example, normal commuting from home to work is ordinarily not considered work time, whereas time spent walking from the time clock to the workstation is generally compensable.
Changing into uniforms. There have been many legal battles about whether employees should be compensated for the time it takes to change into the employer's required uniform. Generally speaking, time spent changing into a uniform on the employer's premises is considered work time, while time spent changing at home is not. Taken one step further, employees with elaborate uniforms/costumes (such as a Disney® character or a Las Vegas showperson) should generally be paid for the time spent changing because it is for the employer's benefit, whereas employees with simple uniforms (e.g., mechanic's overalls) would not be compensated. The U.S. Supreme Court has ruled unanimously that employers must compensate workers for the time they spend walking to and from the production floor after donning and before doffing required safety gear. The Court also said the time spent waiting to doff the required safety gear is compensable under the FLSA (IBP, Inc. v. Alvarez,, 126 S.Ct. 514 (11/8/05)).
On January 27, 2014, the U.S. Supreme Court held that, pursuant to the terms of a collective bargaining agreement (CBA), the time that employees spend putting on and taking off their mandatory protective gear is not compensable under the FLSA (Sandifer v. U.S. Steel, Corp., No. 12-417). The FLSA states that hours worked do not include any time spent in changing clothes at the beginning or end of each workday which was excluded from working time under a bona fide collective-bargaining agreement. Steel workers from the U.S. Steel plant in Gary, Indiana. sought payment in court for the time they had spent each day donning and doffing their protective gear. U.S. Steel argued, in contrast, that the CBA specified that the donning and doffing was not compensable.
The U.S. Supreme Court held that “The time [workers] spend donning and doffing their protective gear is not compensable.” The Court emphasized that the term “clothes” should be “interpreted as taking [its] ordinary, contemporary, common meaning.” The Court further stated that “it is evident that the donning and doffing in this case qualifies as ‘changing clothes.’ Of the 12 items at issue, only 3—safety glasses, earplugs, and a respirator—do not fit within the elaborated interpretation of ‘clothes.’” The Supreme Court guided other courts to ask “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’ If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items ,.... even if some clothes items were also donned and doffed. But if the vast majority of the time is spent in donning and doffing “clothes” as defined here, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.”
This ruling has cleared some uncertainty for unionized employers. Undeniably, the decision makes it difficult for unionized employees to recover under the FLSA for time spent donning and doffing protective gear if the terms of a CBA specifically exclude compensation for such time, or if the parties’ custom or practice also excludes compensation for such time.
Compensation for coming in a few minutes early or staying a few minutes late. Is this compensable time? The general rule is that employees who voluntarily come in before their regular starting time or stay after their regular stopping time must generally be paid only for the periods in which they are “on the clock” and working. For example, the Supreme Court has ruled that compensable work time does not include the time employees spend waiting to don the first piece of gear that marks the beginning of the workday (IBP, Inc. v. Alvarez, 126 S.Ct. 514 (11/8/05)). To avoid litigation, employers should make certain that their employee handbooks clearly state that the company pays only for the actual time spent working. For those employees using time clocks, see the next page for rounding practices.
The key question for determining if an employee must be compensated for waiting time and on-call time is whether the time in question can be used effectively for the employee's personal purposes (which depends on the facts of each individual case).
An employee who is on duty and waiting to be assigned a task is considered to be working. Generally, an employee is on duty when the time is controlled by the employer and is of relatively short duration. However, when the employee is completely relieved of duty (i.e., is allowed to leave the premises and is told exactly when to return), the time need not be counted as hours worked.
Examples of compensable waiting time. The time an employee spends waiting for a meeting to begin, the time a factory worker spends talking with coworkers while waiting for a machine to be fixed, the time a repair person spends waiting for the customer to get the premises ready, must generally be counted as work time.
Example of noncompensable waiting time. If employees are completely relieved of duty for a period of time that is long enough to enable them to use the time effectively for their own purposes, such time need not be counted as hours worked. In such situations, the employees must be told in advance that they may leave the job and that they will not have to commence work until a specified hour. So if a needed machine breaks and cannot be fixed for 4 hours, the employee does not have to be compensated for the time spent waiting if the employer allows the employee to leave and return at a later time.
The U.S. Supreme Court unanimously decided in Integrity Staffing Solutions, Inc. v. Busk, No. 13–433 (2014)that employers do not need to pay employees for time employees spend in postshift security screenings under the FLSA. In this case, employees staffed by Integrity Staffing Solutions who package products for Amazon.com were required to pass through a security screening before leaving work each day. The postshift screening process took almost a half -hour after each workday. The employees filed a class action lawsuit claiming that they should be paid for this time.
The Supreme Court decided that the process of going through the security screening is not compensable under the FLSA. First, the Court reasoned that the security screenings were not a principal activity of the job because “Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Furthermore, the Court found that the security screenings were not “integral and indispensable to the principal activities” of the job and were, therefore, not compensable. The Court stated that an “activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” In this case, the screenings were not “integral and indispensable” to the job, because even if Amazon.com had stopped the postshift screenings, the employees would have been able to fully carry out their job functions. Stopping the security screenings would not have altered the employees’ ability to complete their work.
The Court noted two more interesting points. First, whether a preliminary or postliminary activity is required by the employer is not determinative as to whether it is “integral and indispensable to the principal activities” of the job. In other words, it may be required and still not be “integral and indispensable.” Second, just because Amazon.com could have greatly reduced time employees spent in the screening process by increasing the number of screeners does not mean that the employees should be paid for the time spent during security screenings. “The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.”
On-call time is different than waiting time, as it usually means that the employee is not on the employer's premises. On-call time must be counted as hours worked when the employee is required to remain on call so that his or her time is so restricted that the employee cannot use it effectively for personal purposes.
Pagers, cell phones, and other mobile contact devices. Modern technology allows employers and employees to be in constant contact, and most companies use a variety of electronic devices to notify on-call employees to return to duty. However, simply carrying the device does not usually qualify as hours worked. If the employee is not free to effectively use the time for his or her own personal purposes, the time should be counted as hours worked.
Commuting to and from work is generally not counted as work time. However, if an employee is sent on a special 1-day assignment to another location, the time spent traveling to and from that location must be counted as work time. Other travel time during a normal workday must be counted as hours worked when it is part of the principal job activity or when travel is necessary from jobsite to jobsite.
Travel away from home that includes being away overnight is work time when it cuts across the employee's workday. The travel time is not only hours worked on regular workdays during normal work hours, but also during the corresponding hours on nonworkdays. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is work time on Saturday and Sunday as well as on the other days. Time spent for regular meal periods is not counted. Time spent in travel away from home outside of regular work hours as a passenger on an airplane, train, boat, bus, or automobile is not work time.
Example. If an employee who normally works 9 a.m. to 5 p.m. Monday through Friday is a passenger on a plane departing for San Francisco at 9 a.m. on Saturday, the time spent traveling is work time because it cuts across normal working hours. It does not matter that Saturday is not a normal workday. However, if the plane departed at 6 p.m., the travel time would not be counted as compensable work time because the employee would be traveling outside of normal working hours.
Hourly employees who drive a company vehicle home at the employer's direction or for the employer's benefit (e.g., so they can respond to calls) must be paid for the time it takes to drive home and to respond to customer calls. However, if the vehicle is taken home primarily for the employee's convenience, the travel time need not necessarily be counted as hours worked. Please see the national Travel Time section.
There are other times when employers must pay employees for time not spent working. For example:
Meal periods. There is no federal law requiring meal breaks in industries or offices. However, breaks of up to 20 minutes must be counted as work time, and those that last more than 20 minutes need not be counted as work time, provided the employee is relieved of duty. This is true even if the employee is not permitted to leave the premises.
Rest periods. Short rest breaks of 5 to 20 minutes are common in the workplace. Rest breaks are not required by federal law, but if they are offered, they must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may last for only a specific length of time, that any extension of the break is contrary to the employer's rules, and that any extension of the break will be punished.
Sleeping time. Under certain conditions, sleeping time is compensable work time. An employee who is required to be on duty for fewer than 24 hours is working, even though permitted to sleep or engage in other personal activities when not busy. In the case of employees on duty for 24 or more consecutive hours, the employee and employer may agree to exclude from hours worked meal periods and a scheduled sleeping period of 8 hours or less, provided adequate sleeping facilities are furnished and the employee can typically enjoy an uninterrupted night's sleep. If the sleep period is interrupted by a call to duty, the interruption time is considered hours worked, and if the employee cannot get at least 5 hours of sleep, the entire period must be counted as work time.
The U.S. Department of Labor has released an opinion letter providing guidance on sleep time for group home employees. If a group home employee permanently resides on the premises, the employee does not need to be paid for sleep time, even though the employee is not free to leave the premises during that time, if:
• The employee is free to leave the premises during nonsleep time for his or her own purposes, and can engage in normal private pursuits during nonduty time other than sleep time.
• The employee is paid for all time he or she is called to work during sleep time.
• The employee is paid for the entire sleep period if he or she is interrupted and called to duty to the point where the employee cannot get at least 5 hours of sleep during the sleep period.
• The employee typically works some hours during nonsleep time.
• The employee is paid for all work performed during nonsleep time.
Split shifts. If an employee is entirely free to use the time off between work periods, it need not be counted as work time.
Training programs, lectures, and meetings. If attendance at these functions is required, the time must be counted as work time. If employees attend an independent school, college, or trade school after hours on their own initiative, the time is not counted as hours worked, even if the courses are related to the job.
Holidays, vacations, and sick days. Holidays not worked, vacation days, and sick days are not counted as hours worked. Unless there is an agreement to the contrary, employers have no obligation to pay for such time.
Medical attention. The time an employee spends waiting for and receiving medical attention on the premises or at the direction of the employer during normal working hours on days when the employee is working must be counted as work time.
Report-in pay. Federal law doesn't require employers to pay employees who report to work but are unable to work because of some unusual condition at the workplace. However, many states and industries require report-in pay.
Please see the state Hours of Work section.
Suggestion systems. The time an employee spends outside of regular working hours in developing suggestions under a general suggestion system is not counted as work time. However, if an employee is permitted or assigned to work on suggestions during regular working hours, the time must be counted as work time.
Working from home. Employees who work at home must be paid only for the time that they are working. Other activities, such as eating, sleeping, and entertaining, are treated the same as for those who work in the office.
Extra pay for working during weekends is generally a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend work. However, covered, nonexempt employees must be paid at least 11/2 times their regular rates of pay for the time worked over 40 hours in a workweek whether worked on regular workdays or on the weekend.
Extra pay for working night shifts is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for night work. However, the FLSA does require that covered, nonexempt workers be paid not less than 11/2 times their regular rates of pay for the time worked over 40 hours in a workweek.
Training programs conducted during regular working hours constitute work time and must be compensated as such, according to the FLSA. After-hours training need not be compensated if:
• Attendance is entirely outside normal working hours and is voluntary (attendance will not be found voluntary if the employee is led to believe that attending is critical to his or her job),
• The training is not directly related to the employee's present job, and
• The employee does not do any productive work during the program.
A training program is considered directly related to the job if the training is designed to help the employee handle the present job more effectively (but voluntary attendance at school outside the workplace, after hours, is not work time, even if it is related to the employee's present job). Time spent in training for a new job or in the development of new skills is less likely to be classified as compensable work time.
Online training. If an exempt employee does online training at home, there is no problem, and an employer will pay the employee's usual weekly salary. If a nonexempt employee does online training at home, and if the training is mandatory or job related, which it often is if the employer is providing the training, employers will have to pay nonexempt employees for this time.
Employers may have to pay for the time taken by nonexempt employees to read and send e-mails after work hours. Under the de minimis rule, employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours, if, as a practical administrative matter, such time cannot be precisely recorded. If employees are checking e-mails for 2 or 3 minutes, employers will likely not have to pay for this time. But if employees are spending 10 to 15 minutes after work hours, employers will have to pay employees for this work time. Many employers provide PDAs only to exempt employees and limit after-hours e-mail checking to exempt employees. If a business needs to provide nonexempt employees with PDAs, have a company policy prohibiting after-hours use, monitor employee use of the PDAs, and discipline employees for violating the policy. Remember that even if employees violate a company policy by reading and writing e-mails after work hours, you may discipline the employees, but you still have to pay them for this time.
Federal law restricts the number of hours that minors (under the age of 18) may work.
Minors under the age of 16. Minors under the age of 16 may only work:
• Outside of school hours
• For 18 hours during any week when school is in session
• For 40 hours during a week when school is not in session
• For 3 hours during any day when school is in session
• For 8 hours on a day when school is not is session
• From 7 a.m. to 7 p.m. on any day, except from June 1 through Labor Day, when the child may work from 7 a.m. to 9 p.m.
Exceptions. Attendants at professional sports events may work beyond the weekly time and hour restrictions but not during school hours. Other exceptions to the restrictions for 14- and 15-year-old workers may be made for students who are enrolled in a work experience or career exploration program during school hours.
Minors over the age of 16. There are no federal limits on working hours for 16- and 17-year-old workers. Many state laws do restrict working hours for workers in this age group, however, with stricter requirements applicable to employment on school days or evenings before school days.
Check state law. Most states regulate at least some part of child labor. State laws that are more restrictive than federal laws must be followed.
Please see the state Child Labor section.
Employers are required to keep records of hours worked, wages paid, and other conditions of employment. The FLSA does not require that time clocks be used to record work time; handwritten logs are generally acceptable.
Rounding practices. In some industries, the practice is to round off employees' starting time and stopping time to the nearest 5, 10, or 15 minutes. Theoretically, this arrangement averages out so that the employees are fully compensated for all the time they actually work. This practice may be acceptable unless, over time, it can be shown that employees are not properly compensated for all the time they have actually worked.
Employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours if, as a practical administrative matter, such time cannot be precisely recorded. This rule applies only where industrial realities justify the practice and the periods of time involved are uncertain and amount to a few seconds or minutes. An employer may not fail to count any part, however small, of the employee's fixed or regular work time.
Many employers are following the lead of some of the major corporations that have adopted a corporate culture that emphasizes a work/life balance. These companies recognize the demands that modern life places on a family structure, whether headed by two wage earners or one. Flexible workdays and schedules, including telecommuting options, can play an important part in helping a parent meet family obligations such as attendance at school meetings and medical appointments.
Compensatory time allows public employers to offer their employees additional time off instead of paying overtime. The additional time off must be given at 11/2 times the amount of time worked over 40 hours. For example, an employee working 42 hours in a week has earned 2 hours of overtime. Instead of compensating the employee for that 2 hours of overtime, the employee is allowed to take 3 hours of compensatory time at a later date (2 overtime hours times 1.5 equals 3 hours of compensatory time).
Legislation has been introduced in Congress in the last few years, and again this year, that would extend compensatory time to the private sector. The measure seems to gain additional support each year as it would be a way for employers to theoretically cut costs by avoiding overtime pay.
The Federal Motor Carrier Safety Administration (FMCSA) limits the number of hours a driver may operate a commercial motor vehicle during each workday, the length of the workday within which driving may occur, the minimum off-duty period before starting the next workday, and the cumulative number of on-duty hours during the workweek after which a commercial motor vehicle may not be driven. FMCSA has issued an interim rule that allows interstate truckers to drive 11 hours per day within a 14-hour, nonextendable window after having 10 consecutive hours off duty. Drivers may restart their calculations of the weekly on-duty time limits after they have had at least 34 consecutive hours off duty (also called the 34-hour restart). The 34-hour restart provision gives truckers the opportunity to drive 77 hours in a 7-day period or 88 hours in an 8-day period.
The healthcare industry includes hospitals, residential care establishments, skilled nursing facilities, nursing facilities, assisted living facilities, and intermediate care facilities for mental retardation and the developmentally disabled. The following examples provide guidance regarding common FLSA violations found by the DOL during investigations relating to the failure to pay healthcare employees for all hours worked.
Example 1. An intermediate care facility docks employees by a full quarter hour (15 minutes) when they start work more than 7 minutes after the start of their scheduled shift. Does this practice comply with the FLSA requirements? Yes, as long as the employees’ time is rounded up a full quarter hour when the employee starts working from 8 to 14 minutes before his or her shift or if the employee works from 8 to 14 minutes beyond the scheduled end of the shift.
Example 2. An employee’s schedule is 7 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break. The employee receives overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional overtime compensation for the 1.25 hours over 40.
Example 3. An employer only records and pays for time if employees work in full 15-minute increments. An employee paid $10 per hour is scheduled to work 8 hours a day Monday through Friday, for a total of 40 hours a week. The employee always clocks out 12 minutes after the end of her shift. The employee is paid $400 per week. Does this comply with the FLSA? No, the employer has violated the overtime requirements. The employee worked an hour each week (12 minutes times 5) that was not compensated. The employer has not violated the minimum wage requirement because the employee was paid $9.75 per hour ($400 divided by 41 hours). However, the employer owes the employee for 1 hour of overtime each week.
Example 4. A licensed practical nurse (LPN) works at an assisted living facility that has a “sister facility” 20 miles away. There have been times that the LPN has been asked to fill in for someone at the other facility after she completes her shift at her normal worksite. It takes her 30 minutes to drive to the other facility. The travel time is not recorded on her time sheet. Is this a violation of the FLSA? Yes. The travel time must be considered part of the hours worked.
Example 5. A residential care facility offers specialized training on caring for Alzheimer's disease residents. There are two workshops: one in the evening for the day shift and one during the day for the evening shift. All employees are required to attend. Is this compensable time? Yes, because the training is not voluntary and is related to the employees’ jobs.
Example 6. The administrator of a nursing home says specialized patient care training is voluntary, but the nursing supervisors expect all employees on their units to attend and schedule times for each employee to go. Is the time considered hours worked? Yes, the time would be considered hours worked. When the nursing supervisors expect all unit employees to attend and schedule their times, it is not truly voluntary.
Example 7. The dishwasher decides to go to the Alzheimer’s training session after his shift. Must the administrator pay for the dishwasher’s time spent at the training session? No, because all four criteria above are met. It is not considered hours worked.
Example 8. The administrator provides a Tai Chi course to residents and allows employees to attend during their off-duty hours. Do employees have to be paid for the time they attend this course? No, the employees do not have to be paid because attendance is voluntary and the other three criteria are met.
Example 9. A skilled nursing facility automatically deducts one-half hour for meal breaks each shift. Upon hiring, the employer notifies employees of the policy and of their responsibility to take a meal break. Does this practice comply with the FLSA? Yes, but the employer is still responsible for ensuring that the employees take the 30-minute meal break without interruption.
Example 10. An hourly paid registered nurse works at a nursing home that allows a 30-minute meal break. Residents frequently interrupt her meal break with requests for assistance. Must she be paid for these frequently interrupted meal breaks? Yes, if employees’ meals are interrupted to the extent that meal period is predominately for the benefit of the employer, the employees should be paid for the full 30-minutes.
Example 11. Many third-shift nursing home employees who smoke prefer to take three 10-minute unpaid smoke breaks instead of their 30-minute unpaid meal break. Is it okay for them to substitute the smoke breaks for their meal break? No, the employee must be compensated for the smoke breaks.
Example 12. An assisted living facility has four LPN wellness coordinators who are paid hourly. They rotate being on call each week. They are required to carry a cell phone and be within 45 minutes of the facility when they are on call. They are not paid for all time spent carrying the cell phone but are paid for time spent responding to calls and time when they have returned to work at the assisted living facility. Does this comply with the FLSA? Yes.
Example 13. A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked, but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time and one-half for all FLSA overtime hours worked.
Example 14. An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even though she worked at home and the time was unscheduled.
Last reviewed on January 8, 2015.
For additional information, employers may contact:
U.S. Department of Labor
Frances Perkins Building
200 Constitution Avenue, NW
Washington, DC 20210
866-4-USA-DOL
CT-WEB01
Copyright © 2017 Business & Legal Resources. All rights reserved. 800-727-5257
This document was published on http://Compensation.BLR.com
Document URL: http://compensation.blr.com/analysis/Compliance/Hours-Of-Work/