Hours Worked: Federal
Author: Cheryl D. Orr, Drinker Biddle & Reath LLP
- Employees must be paid for all the time controlled or required by an employer and pursued for the employer's benefit. See Basic Principles.
- Employees do not have to be paid for time spent on certain break periods, as long as certain conditions are met. See Break Periods.
- Employees may not have to be paid for time spent waiting or on call, depending on the circumstances. See Waiting Time and On-Call Time.
- There are several other situations in which questions of hours worked may arise. See Travel Time; Training, Lectures and Meetings; Sleeping; Preliminary and Postliminary Activities and Other Issues.
However, the FLSA statute does not actually define hours worked (except to exclude certain time spent changing clothes or washing).
As a result, an employer must rely on court rulings and regulations from the US Department of Labor (DOL) to interpret what counts as hours worked.
The US Supreme Court ruled that employees must be paid for all the time spent in "physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business." Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, +321 U. S. 590 (1944).
Subsequently, the Supreme Court ruled that an employee does not necessarily have to exert himself or herself. All hours the employee is required to give his or her employer are hours worked. Refraining from other activities in order to be ready to serve can count as work, too, the Court ruled. Armour & Co. v. Wantock, +323 U.S. 126 (1944); Skidmore v. Swift, +323 U.S. 134 (1944).
An employer must also pay its employees for any off-the-clock work they perform. Off-the-clock work occurs when an employer knows or has reason to believe that an employee is continuing to work beyond his or her scheduled shift to the employer's benefit, but the employer does not stop the employee from doing so. For example, an employee may continue working beyond the end of his or her scheduled shift to finish an assigned task, prepare reports, service a customer or meet a deadline. If the employer does not want the employee to keep working off-the-clock, it must prohibit the employee from doing so. If an employee voluntarily works off the clock, the employer must compensate the employee for this time.
Merely implementing a policy against off the clock work is not sufficient to avoid liability. An employer must implement policies that are compliant with the FLSA and other state wage and hour laws, and must ensure that such policies are strictly followed by the employees.
Moreover, many courts have held that an employer has an obligation to exercise reasonable diligence to find out whether its employees are working off the clock - even if the employer did not request or even prohibited the extra work. Appeals courts for the 5th, 6th, 8th and 11th Circuits -- which collectively cover Alabama, Arkansas, Florida, Georgia, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee and Texas -- have adopted this reasonable diligence standard. Craig v. Bridges Bros. Trucking LLC, +2016 U.S. App. LEXIS 9140 (6th Cir. 2016).
Vacation Pay, Sick Leave and Holidays
The FLSA does not require payment for time not worked, such as vacations, sick leave or holidays (whether federal or otherwise). These benefits are a matter of agreement between an employer and an employee (or the employee's representative). Note, too, that vacation, holiday and sick pay also may be excluded from the regular rate of pay when calculating overtime.
De Minimis Time and Rounding
An employer may disregard infrequent and insignificant periods of time worked beyond scheduled working hours (called de minimis time) that, for payroll purposes, would be impractical to precisely record. This de minimis time rule applies only to uncertain and indefinite periods of time of a few seconds or minutes in duration and when failure to count such time is justified by industrial realities.
Federal courts have considered the following three factors to determine whether otherwise-compensable time is de minimis:
- The practical administrative difficulty of recording the additional time;
- The aggregate amount of compensable time; and
- The regularity of the additional work.
See, e.g., Lindow v. United States, +738 F.2d 1057 (9th Cir. 1984).
When an employer uses time clocks, employees' starting and stopping times may be rounded to the nearest five minutes, or to the nearest one-tenth or quarter of an hour. Rounding presumably averages out employees' work time so that all of the time actually worked by each employee is properly counted and each employee is fully compensated for all time he or she actually worked. An employer must make sure that rounding does not result in failure to count as hours worked all the time employees have actually worked over a period of time. +29 C.F.R. § 785.48.
Employees need not gain or break even over every pay period or set of pay periods analyzed. Small losses in compensation are acceptable as long as rounding is done neutrally "without an eye towards whether the employer or the employee is benefiting from the rounding." Corbin v. Time Warner Entm't-Advance/Newhouse P'ship, +2016 U.S. App. LEXIS 7896 (9th Cir. 2016).
An employer faces a complicated web of state and federal laws involving break periods. Determining whether an employer must provide break periods and, if so, whether employees must be paid for that time, can prove difficult:
- The federal FLSA does not require an employer to provide meal breaks or rest breaks to employees, but many states' laws do.
- The federal FLSA does require an employer to provide employees who are nursing mothers with breastfeeding breaks, as many states' laws do.
- Although the federal FLSA does not require an employer to pay employees for meal and rest breaks, as long as certain conditions are met, some states do require payment.
The federal FLSA does require an employer to pay employees for breastfeeding breaks, if the employer permits short rest breaks of 20 minutes or less, such as smoking breaks or water-cooler breaks. An employer that chooses to provide breaks should establish a meal break policy and rest break policy that clearly state its expectations. Such policies should state that employees are required to take their uninterrupted break in a timely manner and are prohibited from engaging in any work-related tasks while on break. Policies should also make clear that unauthorized breaks are prohibited.
If an employer decides to provide a meal break, which is usually 30 minutes or longer, employees must be completely relieved from duty for the purpose of eating regular meals. The time employees are on the break does not constitute working time. An employee is not completely relieved from duty if he or she is required to perform any work, whether active or inactive, while eating. +29 C.F.R. § 785.19.
However, some courts have rejected a literal interpretation of this regulation in favor of a predominant benefit test "to determine, on a case-by-case basis, to whom the benefit of the meal period inures." See, e.g., Babcock v. Butler Cnty., +806 F.3d 153 (3d Cir. 2015). Factors considered include but are not limited to:
- Whether the employee is free to leave the premises;
- The number of interruptions to which the employees are subject;
- The existence of a collective bargaining agreement.
Time not worked, including meal periods, does not have to be counted when determining whether an employee is owed overtime. However, if an employee works during a meal period, that time must be counted for overtime purposes.
An employee has a normal work schedule of 9:00 a.m. through 5:30 p.m., Monday through Friday (eight hours a day with a 30-minute meal break each day), and works through lunch on Tuesday and Wednesday. She will have actually worked 41 hours in that work week, entitling her to one hour of FLSA overtime pay at time and one-half.
Although an employer may automatically deduct time spent on meal breaks from employees' hours worked, it must ensure that the employees are receiving the full meal break. If employees' meal periods are interrupted and they have to perform work during that time, the employer must pay them for the full duration of the break. Many wage and hour lawsuits include claims that an employer has violated the FLSA and state laws by automatically deducting 30 minutes or more for employees' meal periods, even though the employees did not always take the breaks. Such lawsuits are costly; an employer may be liable for the unpaid meal breaks as well as attorney fees and other costs. Establishing a reasonable process by which employees can report missed meal breaks can help shield an employer from liability. Several circuit courts have held that an employer is not liable for nonpayment if the employees fail to follow such a process. See e.g. White v. Baptist Mem. Health Care Corp., +2012 U.S. App. LEXIS 22752 (6th Cir. 2012).
As a general rule, short rest breaks (of 20 minutes or less) count as hours worked. +29 C.F.R. § 785.18. For breaks longer than 20 minutes, the rules for waiting time apply. +FOH 2.31a. In other words, if employees are free to go where they please on rest breaks, and the rest periods are long enough to permit employees to use the time for their own purposes, the breaks do not count as hours worked.
However, a DOL opinion letter states that certain short rest breaks can primarily benefit the employee and therefore are not compensable. +2018 DOLWH LEXIS 21. It cites a 2014 ruling in which a federal district court found that an employee's frequent breaks to accommodate his back pain, which sometimes added up to as much as two hours a day, were not compensable because they benefited only the employee. Spiteri v. At&T Holdings, Inc., +40 F. Supp. 3d 869, 871 (E.D. Mich. 2014). The DOL opined that 15-minute breaks taken by employees every hour due to health conditions that qualify as serious health conditions under the Family and Medical Leave Act (FMLA) predominantly benefit the employees and therefore do not count as hours worked for which the employees must be paid. Employers that have identical fact patterns can be shielded from liability if they follow an opinion letter. However, other courts need not necessarily defer to the DOL's interpretation.
The FLSA requires an employer to provide nonexempt female employees with reasonable break time to express breast milk to nurse a child for one year after the child's birth and as often as the employee needs to do so. The statute does not define reasonable. The DOL says that the frequency of breastfeeding breaks will vary depending on the age of the baby, the number of breast feedings in the baby's normal schedule, whether the baby is eating solid foods, and other factors. The DOL's basic benchmark is that nursing mothers typically will need to express milk two or three times during an eight-hour shift. The length of each break should be at least 15 to 20 minutes, with additional time added for the mother to walk to and from the dedicated lactation space, to retrieve her pump and other supplies, to store her milk in the refrigerator, or to take other actions necessary to express milk.
An employer also is required to provide a place to express breast milk, other than a bathroom, that is shielded from the view or intrusion of coworkers and the public. The location provided must be functional as a space for expressing breast milk. If the space is not dedicated to the nursing mother's use, it must be available when needed in order to meet the statutory requirement.
The FLSA does not require employers to pay nursing mothers for the time they spend in breastfeeding breaks. However, if an employer permits short rest breaks of 20 minutes or less, such as smoking breaks or water-cooler breaks, employees must be paid for that time. If an employer already provides such paid rest breaks, an employee who uses that break time to express milk must be paid just the same as other employees, according to the DOL.
An employer with fewer than 50 employees is not subject to the FLSA breastfeeding break requirement if compliance would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer's business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply.
The FLSA does not preempt state laws that may provide greater protections to employees (for example, providing compensated break time, providing break time for exempt employees, or providing break time beyond one year after the child's birth).
An employer should protect itself by drafting a written breastfeeding policy that specifies the location where employees may breastfeed and/or express breast milk.
All employers of nonexempt employees must post and maintain a notice explaining the FLSA, including break time for nursing mothers. In addition, the DOL offers another, non-required poster that provides further details about break time for nursing mothers.
Waiting Time and On-Call Time
An employer should pay careful attention to time employees spend waiting or on call. Such time can count as compensable hours worked, depending on the circumstances.
Determining whether waiting time counts as compensable hours worked under the FLSA depends on the particular circumstances, including:
- An agreement between the employer and employee;
- The nature of the service and its relation to the waiting time; and
- Any other circumstances.
If the circumstances show the employee was engaged to wait, the employee must be paid for his or her time. If they show the employee was waiting to be engaged, then the employee does not have to be paid for that time. Skidmore v. Swift, +323 U.S. 134 (1944); +29 C.F.R. § 785.14.
As a general rule, time spent waiting to work is compensable if it is spent "primarily for the benefit of the employer and [its] business." Armour & Co. v. Wantock, +323 U.S. 126, 132-34 (1944).
The FLSA regulations distinguish between on-duty waiting time, which must be compensated as hours worked, and off-duty waiting time, which may be excluded from compensable hours worked.
On-duty waiting time. When an employee is waiting for work to do while on duty, he or she is engaged to wait. The waiting time counts as hours worked, even if the employee is allowed to leave the premises or the job site during such periods of inactivity. The following factors qualify waiting time as compensable on-duty waiting time:
- The periods of waiting time are unpredictable;
- The periods of waiting time are usually of short duration; and
- The employee is unable to use the time effectively for his or her own purposes.
The following are examples of on-duty waiting time under the FLSA:
- A receptionist who reads a book while waiting for customers or telephone calls;
- A messenger who works a crossword puzzle while awaiting assignments;
- A firefighter who plays checkers while waiting for alarms;
- A factory worker who talks to fellow employees while waiting for machinery to be repaired;
- A waitperson in a restaurant waiting for customers to arrive;
- A repairperson waiting for a customer to get the premises ready;
- A truck driver who has to wait at or near the job site for goods to be loaded or unloaded; and
- A bus driver who reaches his or her destination and while awaiting the return trip stays with the bus to guard it along with any items left on the bus.
Off-duty waiting time.Off-duty waiting time does not count as hours worked if all of the following requirements are met:
- The employee is completely relieved from duty;
- The periods of waiting time are long enough to enable the employee to use the time effectively for his or her own purposes;
- The employee is specifically told in advance that he or she may leave the job during that time; and
- The employee is advised of the time that he or she is required to return to work.
If all of the above requirements are not met, the employee is working while waiting and must be paid for that time. Whether the time is long enough to enable the employee to use the time effectively for his or her own purpose depends on all of the facts and circumstances of the case.
A truck driver is sent from Boston to New York City, leaving at 6:00 a.m. and arriving at 12:00 noon. If the driver is completely and specifically relieved from all duty until 6:00 p.m. when he or she again goes on duty for the return trip, he or she is waiting to be engaged and the time is not compensable hours worked.
An employee who is required to remain on call on the employer's premises is working. For example, a hospital employee who must stay at the hospital in an on-call room and is not allowed to leave the hospital is working, even if he or she is free to sleep, eat, watch television or read a book.
On the other hand, working time does not include on-call time when an employee is merely required to inform his or her employer of where he or she may be reached.
Most employers' on-call policies fall somewhere between these two poles. The key question in deciding whether on-call time is compensable is, can the employee "use the time effectively for personal purposes"? +29 C.F.R. § 785.17.
Federal courts and the DOL have weighed several factors in answering this question. As with most questions involving the FLSA, no single factor is the final word; all the relevant circumstances must be considered together.
Geographical restrictions. Requiring employees to stay at a fixed location, such as in or close to their homes, will generally weigh in favor of on-call time being compensable. Nevertheless, many courts have found that such restrictions did not render on-call time compensable, as long as other factors allowed the employees to use the on-call time for personal pursuits. See Adair v. Charter County of Wayne, +452 F.3d 482 (6th Cir. 2006); Brock v. El Paso Natural Gas Co., +826 F.2d 369 (5th Cir. 1987); Halferty v. Pulse Drug Co., +864 F.2d 1185 (5th Cir. 1989). By contrast, employees with limited geographical restrictions may still need to be paid for time spent on call if other factors limit their personal pursuits. For instance, employees who were free to travel as far as 35 to 50 miles from the work site, but were on call 24 hours a day, seven days a week, were entitled to be paid for their time. Cross v. Arkansas Forestry Comm'n, +938 F.2d 912 (8th Cir. 1991). Providing employees with pagers or other mobile devices can allow employees additional freedom to move about. Gilligan v. Emporia, +986 F.2d 410 (10th Cir. 1993).
Number of expected returns per shift. In one case, a court found on-call time counted as hours worked when the employees returned to work an average of three to five times per on-call shift. Renfro v. Emporia, +948 F.2d 1529 (10th Cir. 1991). Other courts have found on-call time did not count as hours worked when the employees were called in less than once a day (Gilligan) or once per shift (Reimer v. Champion Healthcare Corp., +258 F.3d 720 (8th Cir. 2001)).
Proportion of must-respond calls. Allowing employees to ignore some call-backs can weigh in favor of on-call time being noncompensable. For example, courts have found time spent on call was not compensable when the employees could refuse to accept about a third of all call-outs. Jonites v. Exelon Corp., +522 F.3d 721 (7th Cir. 2008), cert. denied, +129 S. Ct. 198 (2008); Owens v. Local No. 169, +971 F.2d 347 (9th Cir. 1992); Boehm v. Kansas City Power & Light Co., +868 F.2d 1182 (10th Cir. 1989).
Required response time. Perhaps more than any other factor, the required response time is highly fact-specific. Courts have found on-call policies with short response times to be noncompensable, as long as other circumstances allowed employees to use the on-call time for personal purposes, including:
- Twenty minutes, when there were no other restrictions and the employees received only one call back per shift (Reimer);
- Seven minutes, when the employees were paid $2.25 per hour of on-call time and received an average of less than one call back per shift (Dinges v. Sacred Heart St. Mary's Hosps., +164 F.3d 1056 (7th Cir. 1999)); and
- Five to 10 minutes, when the employees lived in a small town and the short response time gave them access to the entirety of the small town in which they were located (Andrews v. Town of Skiatook, +123 F.3d 1327 (10th Cir. 1997)).
By contrast, on-call policies were found to be compensable when longer response times were combined with more oppressive features that limited employees' personal pursuits, such as:
- 10 to 15 minutes, when the employees received three to five call-backs per shift and could not easily trade shifts (Pabst v. Oklahoma Gas & Elec. Co., +228 F.3d 1128 (10th Cir. 2000));
- 20 minutes, when the employees were called back to work an average of three to five times per 24-hour on-call period and could not easily trade shifts (Renfro); and
- 30 minutes, when the employees were restricted from any personal pursuits such as musical events, sporting events or similar activities that would have prevented them from monitoring radio transmissions (Cross).
Trading on-call responsibilities. The difficulty of trading on-call responsibilities also has weighed in favor of employees' on-call time being compensable. See +2008 DOLWH LEXIS 13; Renfro; Pabst.
Personal activities. Evidence that employees actually spend time in personal pursuits while on call weighs in favor of on-call time being noncompensable. For example, in Reimer, the employees could "play sports, work at home, go shopping, or visit friends and neighbors."
Employment agreements. A prior employment agreement between parties can weigh in favor of on-call time being noncompensable. Allen v. Atlantic Richfield Co., +724 F.2d 1131 (5th Cir. 1984); Rousseau v. Teledyne Movible Offshore Inc., +805 F.2d 1245 (5th Cir. 1986).
Lower rates for on-call time. An employer is free to pay its employees at a rate lower than their usual hourly rate for time spent on call, as long as that lower rate is at least the minimum wage and the employee agrees to the lower rate. In such cases, employees must be paid any overtime due based on a weighted average of the on-call rate and their normal hourly wage. +29 C.F.R. § 778.318.
Time employees spend traveling may count as hours worked in certain cases.
Normal commuting time from home to work, and from work to home, is not considered hours of work under the FLSA. +29 C.F.R. § 785.35. However, if the employer requires employees to perform some work-related duties while traveling between home and the work site, the time may be considered hours worked.
For example, the following work-related activities may count as hours worked:
- Providing transportation for other employees;
- Picking up supplies or equipment; and
- Stopping by a location specified by the employer to pick up tools, receive instructions or do other work.
However, if an employer requires an employee who has gone home after completing his or her day's work to travel a substantial distance to perform an emergency job, time spent on such travel is also hours worked. +29 C.F.R. § 785.36.
An employee who regularly works at a fixed location in one city and who is required to travel to a distant location outside the limits of his or her official work site for a special one-day assignment must be paid for the travel time. However, since the employee would have had to report to his regular work site except for the special assignment, the time the employee would have spent in normal commuting is deducted from the travel time. +29 C.F.R. § 785.37.
All in a Day's Work
Once the work day begins the FLSA requires all time considered "all in a day's work" to be paid. (This is also sometimes referred to as the continuous work day rule.) This includes time spent going from one site to another or to and from a client's site. +29 C.F.R. § 785.38.
Overnight Travel Away From Home
Travel that keeps an employee away from home overnight is travel away from home. This travel away from home counts as compensable hours worked when it cuts across an employee's workday because the employee is simply substituting travel for other duties. The time counts as hours worked not only on regular working days during normal working hours but also during the corresponding hours on nonworking days. So, for example, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is compensable working time on Saturday and Sunday as well as Monday through Friday. Regular meal breaks are not counted. But time spent in travel away from home outside of normal working hours as a passenger on an airplane, train, boat, bus or automobile does not count as compensable working time. +29 C.F.R. § 785.39.
Even if an employee does not work a traditional 9-to-5, Monday-to-Friday work schedule, a review of employees' time records usually reveals work patterns sufficient to establish normal working hours. A DOL opinion letter outlines different methods that an employer may use:
- Review the employee's time records during the most recent month of regular employment. If the records reveal normal working hours, these may be considered as the normal working hours going forward unless there is some subsequent material change in the normal hours.
- If the records do not reveal any normal working hours, the employer may instead choose the average start and end times for the employee's workdays.
- As another alternative, in the rare case in which employees truly have no normal work hours, the employer and employee (or the employee's representatives) may negotiate and agree to a reasonable amount of time or timeframe in which travel outside of employees' home communities is compensable.
If an employee is offered public transportation but requests permission to drive his or her own automobile instead, the employer may count as hours worked either:
- The time spent driving the automobile; or
- The time the employer would have to count as hours worked if the employee had used the public transportation.
Use of a Company Vehicle
Commuting in a company-owned vehicle is not compensable work time unless employees are required to perform additional, legally cognizable work while driving to their workplace in order to compel compensation for the time spent driving. +29 U.S.C. § 254. Thus, time spent commuting in an employer-provided car, even where employees talk about work, or transport equipment is not compensable. Activities "incidental" to use of a company vehicle for commuting are also not principal activities that count as hours worked.
Training, Lectures and Meetings
Under the FLSA, all training, lectures and meetings count as hours worked if they occur during an employee's regular shift, or if they are required by the employer. +29 C.F.R. § 785.28.
Attendance at lectures, meetings, training programs and similar activities need not be counted as hours worked if:
- Attendance is outside of the employee's regular working hours;
- Attendance is voluntary;
- The course, lecture or meeting is not directly related to the employee's job; and
- The employee does not perform any productive work during such attendance.
Attendance is not voluntary if the employee is led to believe that his or her working conditions or continued employment are at risk by not attending. +29 C.F.R. § 785.28.
Training directly related to an employee's job - that is designed to make the employee handle his or her job more effectively - counts as hours worked. Training for another job or for upgrading the employee to a higher skill level does not count as hours worked. +29 C.F.R. § 785.29.
Training an employee receives at his or her own initiative at an independent school, college or independent trade school after work hours also does not count as hours worked, even if the courses are related to the employee's job and even if the employer pays for it. +29 C.F.R. § 785.30.
Employees' time worked under bona fide apprenticeship programs does not have to be counted as hours worked if:
- The apprentice is employed under a written apprenticeship agreement or program that substantially meets the fundamental standards of the Bureau of Apprenticeship and Training of the US Department of Labor (which is currently named the Office of Apprenticeship); and
- Such time does not involve productive work or performance of the apprentice's regular duties.
If the above criteria are met, the time spent in apprenticeship programs does not count as hours worked unless the written apprenticeship agreement specifically provides that it is hours worked.
The FLSA allows an employer to pay employees who receive remedial training outside of work hours for 10 hours of straight time at their regular rate of pay rather than overtime pay. The remedial training must be designed to provide reading and other basic skills at an eighth-grade level or below, or to fulfill the requirements for a high school diploma or a General Educational Development (GED) certificate.
The training also has to occur during discrete periods of time set aside for it, and must be conducted away from the employee's work station "to the maximum extent practicable." An employer must keep accurate records of both (a) an employee's time spent in the remedial education each workday and each workweek, and (b) the compensation the employee is paid for this time.
When an employer offers training to prospective employees who are not guaranteed employment, the trainees are not considered employees within the meaning of the FLSA and do not have to be compensated if the following conditions are satisfied:
- The training, even though it includes actual operation of the facilities of the employer, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainees;
- The trainees do not displace regular employees, but work under their close observation;
- The employer that provides the training derives no immediate advantage from the activities of the trainees and, on occasion, operations may actually be impeded;
- The trainees are not necessarily entitled to a job at the conclusion of the training period; and
- The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.
The key component of this test involves balancing the benefit to the trainee against any advantage to the employer. If an employer is gaining an economic advantage from the efforts of its "trainees," they will likely be deemed employees entitled to compensation for their "training time." Tony and Susan Alamo Foundation v. Secretary of Labor, +471 U.S. 290 (1985).
An employee who is required to be on duty for less than 24 hours is working even if the employee is permitted to sleep or engage in other personal activities when not busy. Accordingly, the employee must be paid for time spent sleeping while he or she is at work. +29 C.F.R. § 785.21.
However, an employee who is required to be on duty for 24 hours or more may agree to exclude meal periods and regularly scheduled sleeping periods of not more than eight hours from hours worked, if the employer:
- Provides adequate sleeping facilities that allow an employee to enjoy an uninterrupted night's sleep; and
- The employee is able to get more than five hours of uninterrupted sleep.
If a sleeping period lasts more than eight hours, only eight hours will be credited. +29 C.F.R. § 785.22.
Although the regulation doesn't specify whether this agreement must be in writing, an employer is advised to have a written record of any agreement it wants to enforce against employees. If there is no expressed or implied agreement to the contrary, the eight hours of sleeping time and lunch periods count as hours worked. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep (at least five hours), the entire period must be counted.
An employee who resides on his or her employer's premises on a permanent basis or for extended periods of time is not considered to be working when engaging in normal private pursuits. It is important to establish written parameters in those situations. +29 C.F.R. § 785.23.
Preliminary and Postliminary
Activities employees must perform before and after a shift that are an integral part of their principal job and indispensable to its performance ("principal activities") are compensable. Time spent setting up equipment before the official start time of a shift, cleaning equipment after the end of a shift and work-related activities performed by an employee after a shift, while "on the way home," counts as hours worked. Similarly, an assistant who drops off the day's mail at the post office or makes a delivery to a customer or supplier must be compensated.
Just because an employer requires its employees to perform an activity or benefits from them performing an activity does not necessarily mean that they must be paid for that activity. Integrity Staffing Solutions, Inc. v. Busk, +135 S. Ct. 513 (U.S. 2014).
Donning and Doffing
One highly contested issue that comes up often is whether time employees spend donning and doffing (putting on and taking off) specialized gear or clothing to perform their duties is "integral and indispensable to the employees' work" and, thus, compensable. Litigation regarding failure to pay for donning and doffing often arises in meat-packing and other agricultural and manufacturing industries where employees are required to wear safety equipment.
As the FLSA requires employees to be compensated for "work" performed, the key question is whether donning and doffing should be considered work. In Steiner v. Mitchell, +350 U.S. 247 (1956), the Supreme Court held that donning and doffing specialized protective gear at a battery plant fell within the definition of "work" because it was an "integral and indispensable part of the principal activities" of the battery plant employees' job, as it was necessary for health and hygiene.
A significant outcome of Steiner was that the Court distinguished between donning and doffing "unique" gear, which is compensable, as opposed to "non-unique" gear that is not integral and indispensable and therefore not compensable. Subsequent case law generally classifies safety glasses, steel-toed footwear, hard hats and thin gloves as "non-unique" gear.
After Steiner, the Supreme Court ruled in IBP v. Alvarez, +546 U.S. 21 (2005) that employees who are required to put on protective gear before starting work activities must be paid for the time spent walking from the changing area to the production area. In addition, the time spent walking from the changing room to their work stations is compensable under the FLSA.
The 2nd Circuit Court of Appeals added another twist to this analysis in Gorman v. The Consolidated Edison Corp., +488 F.3d 586 (2d Cir. 2007). There, the court focused on the requirement that an activity be both integral and indispensable to the principal activity and held that, while arguably "indispensable," the pre- and post-shift donning and doffing activities of employees relating to security at a nuclear power station was not "integral." They were "necessary in the sense that they are required to serve essential purposes of security, but they are not integral to principal work activities, because "the security measures at entry are required (to one degree of another) for everyone entering the plant." The Gorman court also confirmed that donning and doffing of "a helmet, safety glasses, and steel-toed boots" were not integral because they were generic gear, similar to other clothes.
Whether or not donning and doffing of protective gear is de minimis and, if so, how much is de minimis, remain context-specific and the courts are split. An employer should, therefore, strive to compensate employees for any activity that is integral and indispensable to their principal activity and err on the side of inclusion.
Clothes-Changing or Washing Under a CBA
Under the FLSA, "changing clothes or washing at the beginning or end of each workday" can be excluded from compensable time worked under the express terms of or by custom or practice under a bona fide collective bargaining agreement. +29 U.S.C. § 203(o). Whether there is a custom or practice of not paying for donning or doffing depends on the particular circumstances of the position and industry at issue. However, the employer must, at the very least, show that there is a long history of nonpayment in the industry and that the employees knew and agreed to the practice.
The meaning of the word clothes under § 203(o) is "items that are both designed and used to cover the body and are commonly regarded as articles of dress." Specific items that count as clothes under this definition include:
- Flame-retardant jackets, pants and hoods;
- Snoods (hoods that also cover the neck and upper-shoulder area, such as a balaclava);
- Work gloves;
- Leggings; and
- Metatarsal boots.
However, the term clothes does not cover tools or many accessories, such as necklaces or knapsacks, that are not designed and used to cover the body.
For this reason, the following items do not count as clothes:
- Safety glasses;
- Earplugs; and
Whenever time spent changing clothes and washing is mixed up with other activities (such as donning and doffing items that do not count as clothes), the period in question must be considered on the whole. If an employee devotes the vast majority of the time in question to putting on and off equipment or other non-clothes items, the entire period would not qualify as "time spent in changing clothes" under §203(o), even if some clothes items were donned and doffed as well. But if the vast majority of the time is spent in donning and doffing "clothes," then the entire period qualifies and the time spent putting on and off other items need not be subtracted.
Sandifer v. U.S. Steel Corp., +134 S. Ct. 870 (U.S. 2014).
An employer also should consider several other situations that may count as hours worked.
Employees Who Work at Home or Reside at Their Employer's Premises
The FLSA regulations recognize that it is "difficult to determine the exact hours worked" when an employee works at home or resides at the employer's premises. +29 C.F.R. § 785.23. Accordingly, the FLSA allows employers and employees to enter into a reasonable agreement about the hours that will constitute work time, as long as the agreement takes into consideration all of the pertinent facts (and is consistent with the "regular" FLSA rules governing hours worked). However, employers and employees may not agree to treat working hours as nonworking hours.
Exactly what constitutes a reasonable agreement is not well established, but the DOL offers an example of a reasonable agreement. In general, to be considered reasonable, any agreement between the employer and the employee should reflect the actual time worked.
Time spent in adjusting grievances between an employer and employees during the time the employees are required to be on the premises is hours worked, but in the event a bona fide union is involved, the counting of such time will, as a matter of enforcement policy, be left to the process of collective bargaining or to the custom or practice under the collective bargaining agreement. +29 C.F.R. § 785.42.
Time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when he is working constitutes hours worked. +29 C.F.R. § 785.43.
Civic or Charitable Work
Time spent in work for public or charitable purposes at the employer's request, or under his or her direction or control, or while the employee is required to be on the premises, is working time. However, voluntary participation in such public or charitable work outside of the employee's normal working hours does not count as hours worked. +29 C.F.R. § 785.44.
An employer may use an employee's time spent volunteering as a factor in calculating whether to pay the employee a bonus, without incurring an obligation to treat that time as hours worked, as long as:
- Volunteering is optional;
- Not volunteering will have no adverse effect on the employee's working conditions or employment prospects; and
- The employee is not guaranteed a bonus for volunteering.
Employees must be paid for their actual hours worked when daylight savings time takes effect. An employee who works only seven hours when the clocks are turned forward, and an employee who works nine hours when the clocks are turned back, must be paid for the actual hours worked instead of the scheduled eight hours.
When an employer requires its employees to take certain tests at the beginning or employment or on a periodic basis during their employment, such as physical exams, fingerprinting or drug testing, the employer must pay the employees for any time spent traveling to and from the tests, time spent waiting for the tests and time spent undergoing the tests.
Show-Up Time / Reporting Time
Under the FLSA, an employer does not have to pay employees who show up at work as scheduled but are sent home before they can perform any work. However, many states require payment for this time, which is often referred to as show-up time or reporting time.
Communications in Postings Required by Federal Law
All employers of nonexempt employees must post and maintain a notice explaining the FLSA. The poster must be kept in a conspicuous place, such as a kitchen or break room, where employees can readily observe it. +29 C.F.R. 516.4.
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The following states have additional requirements for this topic under applicable state law.
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