The federal Fair Labor Standards Act (FLSA) requires employers to compensate non-exempt employees at least the minimum wage for each hour worked and pay them overtime (at 1.5 times the employee’s regular rate of pay) whenever they work more than 40 hours in a workweek. The amount non-exempt employees should receive in pay cannot be determined accurately without knowing the number of hours worked. Under many circumstances, time spent at a worksite is considered hours worked under the FLSA. What about when an employee sleeps at the worksite?
To help you navigate these situations, a summary of the federal rules and guidance is below. We’ll also cover on-call time.
Sleep time
Under the FLSA, the rules regarding sleep time differ based on how long the employee is on duty.
On-duty time of less than 24 hours
Under the FLSA, an employee who is required to be on duty for less than 24 hours is working even if they are permitted to sleep (or engage in other personal activities) when they aren’t actively working.
For example, a non-exempt health care worker who is required to be on duty for 20 hours during an emergency is working even though they are permitted to sleep when not caring for patients.
On-duty time of 24 hours or more
If an employee is required to be on duty for 24 hours or more, the employer may exclude regularly scheduled sleeping periods of no more than 8 hours from hours worked, provided:
- An expressed or implied agreement exists between the employer and employee;
- Adequate sleeping facilities are furnished by the employer; and
- The employee can usually enjoy an uninterrupted night's sleep.
The best practice is to have such agreements in writing. Where no agreement to the contrary is present, the 8 hours of sleeping time must be considered hours worked.
Notably, even if the sleeping period is more than 8 hours, only 8 hours may be excluded from 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 is unable to get a reasonable amount of sleep, the entire period must be counted as hours worked. With limited exceptions, the U.S. Department of Labor (DOL) considers at least 5 hours of uninterrupted sleep to be reasonable.
The FLSA and its regulations don’t define what constitutes adequate sleeping facilities for purposes of the sleeping-time rules, and the DOL says it depends on the particular circumstances. Employers should consult legal counsel to help make such determinations.
On-call time
Generally, on-call means being available to be contacted to work if necessary but not formally on duty. Whether on-call time is hours worked under FLSA depends upon the particular circumstances.
An employee who is required to remain on-call on the employer's premises (or so close to the workplace that they cannot use the time effectively for their own purposes) is working while "on-call," and all of the time is considered hours worked and must be paid, according to the DOL.
By contrast, an employee who is required to remain on-call at home isn’t necessarily working while on-call. The inactive time might not be considered hours worked if the employee is still able to use the on-call time effectively for their own purposes. The DOL’s guidance indicates that an employer may require the employee who is on-call at home to be accessible by mobile phone without the inactive time being considered hours worked.
As such, employers must be careful about any restrictions they put on employees because additional restrictions on the employee's freedom could require that the inactive time be considered hours worked.
For example, if the employee is interrupted with work calls to such an extent, or required to report to work so quickly, that they cannot conduct their regular personal activities, such as mowing their lawn, going to the movies, going to a ball game, or engaging in other activities of their choosing, the inactive time may need to be considered hours worked. Employers should consult legal counsel to help make such determinations.
Conclusion
Employers that face sleeping time and on-call time situations should review federal rules and guidance, consult legal counsel, and ensure that they are paying employees properly. They should also keep in mind that some states have their own rules for these situations, which may differ. Check your state law for details.
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