HOURS OF WORK
Types of Work
Hours of Work Generally
- While determining when employees must be paid for their time is often straightforward, in many situations the answer is far less obvious. The FLSA helps set the framework for determining what time spent by an employee constitutes “work,” therefore entitling the employee to compensation (i.e. whether time spent is “compensable”). This page seeks to offer clarification for situations that often create confusion.
Travel Time
- Ordinary commuting time from home to work, or from work to home, is generally not compensable (regardless of whether an employee reports to work at a fixed location or at different job sites).
- An exception to this general rule may apply if an employee performs work-related activities while commuting from home to work or from work to home, such as running errands for work, transporting materials or equipment, attending a conference call, or driving other employees at an employer’s request.
- Time spent traveling during the workday as part of an employee’s principal job activity—such as travel between job sites, or from a mandatory meeting location to a job site—is compensable, regardless of whether the employee is the driver or the passenger.
- Time spent traveling to and from another city for a one-day special assignment (not overnight travel) is compensable, regardless of whether the travel occurs during the workday. However, normal commuting time to or from the regular work location may be deducted from the total time spent traveling, as that time is not otherwise compensable.
- Time spent traveling to and from another city for work for more than one day (overnight travel) is compensable if it cuts across an employee’s normal working hours or if an employee is required to drive.
- Any work performed while traveling (such as work performed while riding on a plane or train) is compensable.
Training Time
- Job-related training activities are typically compensable. However, training time is not compensable if each of the following four elements are satisfied:
- (1) Attendance is outside of the employee’s regular working hours;
- For example, if an employee works Monday through Friday from 9:00 a.m. to 5:00 p.m., a one-hour training session at 6:00 p.m. on a Saturday would satisfy this element.
- (2) Attendance is strictly voluntary;
- Mandatory attendance clearly violates this element, but the element is also not satisfied if an employee is instructed or led to believe that his or her working conditions or continued employment would somehow be adversely affected by failing to attend the training.
- (3) The training is not directly related to the employee’s job; and
- Training is directly related to an employee’s job if it is designed to help the employee handle his or her current job more effectively. Training for another job or a new skill, by contrast, is generally not related to the employee’s job for purposes of this element.
- (4) The employee does not perform productive work during attendance.
- (1) Attendance is outside of the employee’s regular working hours;
- Voluntary time spent in lectures or courses established by an employer for the benefit of employees—and which correspond to lectures or courses offered by independent bona fide institutions of learning—may also not be considered compensable, even if they are directly related to an employee’s job.
- For public sector employers only, training time is not compensable, even if it would otherwise be considered compensable under the four-factor test provided above, for training that occurs:
- (1) Outside of the employee’s regular working hours; and
- (2) In a training session or class that is required under the law for certification of all public and private employees, or required under the law of a higher jurisdiction (such as requirements for city employees that are imposed by state law) for certification of all public employees.
- This rule applies even if all or part of the training is paid for by the public employer.
On-Call Time
- Whether “on-call” time is compensable largely depends on the degree of restrictions placed upon an employee while on call.
- The more onerous the restrictions placed upon an employee (and the less an employee can use on-call time for his or her personal purposes), the more likely it is that the on-call time is compensable.
- For example, if an employee is required to remain at the employer’s premises during on-call time, the employee is unlikely to be able to use the time for his or her personal purposes, and all such time should be considered compensable.
- Conversely, the more an employee is able to use on-call time for his or her personal purposes (due to fewer restrictions), the less likely it is that the time is compensable.
- For example, if an employee is merely required to keep a cell phone or pager nearby, but otherwise does not need to perform any duties unless called to work, such time should not be considered compensable.
- Modest restrictions, such as prohibiting an employee from consuming alcohol while on call, are typically not imposing enough to require compensation.
- The more onerous the restrictions placed upon an employee (and the less an employee can use on-call time for his or her personal purposes), the more likely it is that the on-call time is compensable.
- Courts consider a number of factors when assessing whether circumstances are restrictive enough to require compensation, including:
- The degree of geographical limitations on an employee’s movements;
- The number and frequency of calls during an on-call period in relation to the time spent without having to respond to calls;
- The ability of an employee to maintain a flexible on-call schedule and trade on-call shifts; and
- The extent to which an employee can or did engage in personal activities.
Waiting Time
- The compensability of waiting time, during which an employee is not actively performing work, depends on whether an employee is “engaged to wait” (which is compensable) or “waiting to be engaged” (which is not compensable).
- “Engaged to wait” means that an employer requires an employee to be at work and wait for something to do. The waiting periods are usually short and/or unpredictable and comprise an integral part of the job.
- For example, a receptionist who is permitted to read a book in between answering calls, a delivery person who must wait in his or her truck for the next assignment, a store clerk who is allowed to talk on the phone while waiting for customers to arrive, and a warehouse employee who socializes while waiting for a manager to approve his or her work are all “engaged to wait” and are thus entitled to compensation for their waiting time.
- “Waiting to be engaged” means that an employee is waiting to perform work, but is not required to do so by his or her employer.
- An employee must be completely relieved from duty for a period long enough to effectively use the time for his or her own purposes for the employee to be waiting to be engaged.
- For example, a restaurant server who waits at a table until his or her shift starts, or a truck driver who is explicitly relieved of duty for several hours while traveling to another city, are waiting to be engaged and are thus not entitled to compensation for their waiting time.
- “Engaged to wait” means that an employer requires an employee to be at work and wait for something to do. The waiting periods are usually short and/or unpredictable and comprise an integral part of the job.
Show-Up or Call-In Time
- The FLSA does not require payment to an employee who is sent home upon arriving to work, before any work is performed, even if the employee was instructed by the employer to arrive at that time.
- For example, if a construction worker is told to arrive at a job site at 7:00 a.m., and upon arriving, the worker is told to go home because of rain, the FLSA does not require that the employer pay the worker anything, including show-up or call-in time.
- If an employment contract provides otherwise, or if an employee is forced to wait before being told to go home (i.e. being “engaged to wait”), payment for such time may be required.
Meal Breaks
- Nothing in the FLSA requires that an employer provide meal breaks to its employees (though meal breaks may be required by state law, which is particularly common for minor employees).
- If meal breaks are offered, they are not compensable if:
- (1) They last at least 30 minutes; and
- (2) The employee is relieved from all duties during the break.
- As a general rule, if an employee is required to perform active or inactive work while eating, including waiting for customers to visit or waiting for the phone to ring (even if no customers actually visit and the phone does not actually ring), the employee is not relieved of all duties and the meal break is compensable. Courts do not always apply this standard strictly—so long as meal breaks predominantly benefit the employee rather than the employer, the performance of minimal work duties will not always render a meal break compensable.
- It is not necessary for an employee to be permitted to leave the premises to maintain the unpaid status of meal breaks.
- For law enforcement and fire protection employees subject to the partial overtime exemption only, certain special rules apply:
- For law enforcement employees working a tour of duty of 24 hours or less, meal periods of at least 30 minutes are subject to the same rules as those described above, but applicable regulations expressly provide that meal periods are compensable if such employees are on-call in certain quarters or are engaged in extended surveillance activities (such as stakeouts) during the meal period.
- For fire protection employees working a shift of 24 hours or less, meal periods are compensable.
- For law enforcement or fire protection employees on duty for more than 24 hours, meal periods of at least 30 minutes are not compensable under the rules described above so long employees are not on-call during the meal period.
Other Breaks
- With the exception of lactation breaks for nursing mothers, nothing in the FLSA requires that an employer provide breaks to its employees.
- Employers must provide lactation breaks to nursing mothers for up to one year after a child’s birth. Nursing mothers must be allowed to take a break every time they need to express breast milk, and employers must provide these employees a private location, other than a bathroom, to do so.
- Short breaks, if offered, are compensable, as they are viewed as promoting an employee’s efficiency. This includes rest periods, coffee breaks, smoking breaks, and breaks for personal phone calls.
- While short breaks are compensable, an employee’s unauthorized extension of a break (such as taking ten minutes for an allotted five-minute smoking break) is not compensable if an employer expressly and unambiguously communicates to the employee that:
- (1) The break may only last for a specific length of time;
- (2) An unauthorized extension of the break is contrary to the employer’s rules; and
- (3) An unauthorized extension of the break will be penalized.
- While short breaks are compensable, an employee’s unauthorized extension of a break (such as taking ten minutes for an allotted five-minute smoking break) is not compensable if an employer expressly and unambiguously communicates to the employee that:
- Lengthier breaks are not compensable as long as:
- (1) The employee is relieved from all duties during the break; and
- (2) Conditions of the break are sufficient to enable the employee to effectively use the time for his or her own purposes (similar to the “waiting to be engaged” standard for waiting time).
Sleep Time
- When an employee is permitted to sleep during a shift, whether the sleep time is compensable depends on whether the employee is (a) on duty for less than 24 hours, (b) on duty for 24 hours or more, or (c) a “live-in” employee.
- If an employee is on duty for less than 24 hours, all sleep time permitted during a shift is compensable.
- For example, if a call center employee is permitted to sleep between phone calls, or an assisted living facility employee is permitted to sleep during the night in the absence of any emergencies, all such time is compensable.
- If an employee is on duty for 24 hours or more, up to 8 hours of sleep can be excluded from compensable time for each 24-hour shift (no more than 8 hours can be excluded, even if the sleeping period is longer than 8 hours) if the following three elements are met:
- (1) An express or implied agreement that excludes a maximum of 8 hours of sleep time was reached between the employer and the employee prior to the sleep period at issue;
- (2) Adequate sleeping facilities are provided by the employer; and
- (3) The employee can usually enjoy an uninterrupted night’s sleep (generally consisting of at least 5 hours of sleep).
- Any interruptions to perform work duties are considered hours worked and must be paid.
- If, during any given shift, the employee is unable to enjoy at least 5 hours of sleep, the entire sleep period is compensable.
- An exception to this rule exists for law enforcement and fire protection employees whose employers take the partial overtime exemption. When such employees work 24-hour shifts, all sleep time is compensable.
- If an employee is on duty for less than 24 hours, all sleep time permitted during a shift is compensable.
- If an employee is a “live-in employee,” such that the employee resides at his or her worksite permanently (the employee stays there seven days per week and has no other home) or for an “extended period of time” (the employee works and sleeps there at least five days per week (120 hours or more) or five consecutive days or nights), up to eight hours of sleep can be excluded from compensable time if the following two elements are met:
- (1) An express or implied agreement that excludes a maximum of eight hours of sleep time was reached between the employer and the employee prior to the sleep period at issue; and
- (2) Private quarters in a home-like environment are provided by the employer.
- Any interruptions to perform duties are considered hours worked and must be paid.
- Relatedly, the law recognizes that all time spent on the premises by a live-in employee may not be time worked. If a live-in employee can engage in normal private pursuits (such as eating, entertaining, and other periods of complete freedom from all duties), such time, like uninterrupted sleep time, is not compensable. It is therefore important to have an agreement in place that details when a live-in employee is working and when a live-in employee has personal time.
Preliminary and Postliminary Activities
- As a general rule, time spent performing activities preliminary to an employee’s principal work activities (before beginning principal work activities) or postliminary to an employee’s principal work activities (after concluding principal work activities) are not compensable. Principal work activities themselves are compensable.
- Principal work activities are those that an employee is hired to perform (including activities that are of consequence for the employer), as well as activities that are an integral and indispensable part of the tasks that an employee was hired to perform.
- Activities are integral and indispensable if they are necessary to the performance of the principal work activities.
- For example, time spent by a chemical plant employee changing clothes when working with toxic materials, time spent by a call center employee preparing his or her equipment to take calls, and time spent by a meatpacking employee sharpening knives all likely qualify as activities integral and indispensable to an employee’s principal work activities.
- Relatedly, under the continuous workday rule, all tasks performed between an employee’s first and last principal work activities are compensable, notwithstanding breaks that are excluded from compensability.
- Principal work activities are those that an employee is hired to perform (including activities that are of consequence for the employer), as well as activities that are an integral and indispensable part of the tasks that an employee was hired to perform.
- Preliminary and postliminary activities are also compensable, regardless of their relation to principal work activities, if there is a custom or practice by an employer of treating such time as hours worked, or if a written or unwritten contract treats such time as hours worked.
- However, even if certain activities would otherwise be compensable, employers may not be required to pay for work time that is considered “de mimimis” (time that is so small, insignificant, or trivial that it is not worth taking into account). Though there is no exact amount of time that qualifies as “de mimimis,” courts generally look to three factors when performing a de minimis analysis, including:
- (1) The practical difficulty the employer would encounter in recording the time worked;
- (2) The aggregate amount of time involved; and
- (3) The regularity of the work.
Unauthorized or "Voluntary" Work
- As a general rule, an employee who performs work outside of his or her scheduled shift is owed wages for the work performed, even if the time worked is not authorized by the employer or is considered “voluntary.”
- For an employer to be liable for any unauthorized or “voluntary” work, the employer generally must know or have constructive knowledge (i.e. should know in the exercise of reasonable diligence) that such work was performed.
- For example, when a manager regularly receives work-related calls or emails from an employee after work hours, or when an employer assigns work late in the day that cannot be completed within the employee’s scheduled shift but must be completed by the morning, the employer knows or has constructive knowledge that work outside of the employee’s shift was performed.
- Employers bear the responsibility to prevent unauthorized work. The mere promulgation of a rule prohibiting additional hours of work is not sufficient to avoid wage payment obligations for work performed.