As we have discussed in our “FLSA – Hours Worked“, minimum wage and overtime compliance cover a variety of situations, such as travel time, waiting time, on-call time, rest and meal periods, sleeping time, meeting and training time, and show-up time. In this segment of our series, we will discuss time in which an employee is suffered or permitted to work and whether these circumstances should be counted as hours worked.
Suffered or Permitted to Work
The federal Fair Labor Standards Act (FLSA) classifies the time worked by nonexempt employees for the benefit of their employer as hours worked for the purpose of minimum wage and overtime compliance. In some cases, this includes situations where an employee works outside his or her scheduled time without explicit permission but the employer knows or has reason to know the employee is doing so. This time is known as time suffered or permitted to work and it must be counted as hours worked. 29 CFR 785.11 Hours worked that may constitute time suffered or permitted to work include hours worked at the employer’s premises or job site or away from the employer’s premises or job site, such as working at home, waiting for a bus, in a coffee shop, etc. 29 CFR 785.12 The issue of time suffered or permitted to work has become even more important with the advent of smartphones and remote network access. Employees responding to emails or working on a project remotely from home after hours may be entitled to compensation for that time.
An common example of when time suffered or permitted to work involves employees working through unpaid breaks. For example, let’s say an employee is scheduled to work from 9:00 a.m. to 5:30 p.m. with 30-minute unpaid lunch break from 12 to 12:30 p.m. For a full week, to meet a deadline, the employee works through her lunch breaks. Her supervisor is aware of the employee’s practice of working through lunch and takes no steps to stop it. Chances are the employer would be required to pay the employee for the time worked during the lunch break, including any overtime hours that may have accrued for the week.
The FLSA places the burden on the employer to prevent employees from working unscheduled time. 29 CFR 785.13 In the words of the regulation, an employer cannot “sit back and accept the benefits [of unscheduled hours worked] without compensating [employees] for them.” Employers are permitted to establish rules for employees regarding working only during scheduled hours and are encouraged to enforce those rules consistently to ensure compliance.
If you had been following our “FLSA – Hours Worked” series, you will have noticed there are a variety of circumstances that prompts the question as to whether an employee’s time should be counted as hours worked for purposes of minimum wage and overtime compliance under the FLSA. Time an employee is suffered or permitted to work is no exception. If you are uncertain whether an employee should be compensated for time permitted or suffered to work, it is recommended that you consult a local attorney who specializes in employment law.
Below are links to other topics covered in our FLSA – Hours Worked series:
- Travel time
- Waiting time
- On-Call time
- Rest and meal periods
- Sleeping time
- Meeting and training time
- Show-up time
- Time suffered or permitted to work
- Unauthorized time (coming soon)
* States may have their own minimum wage and overtime laws, including their own standards for when an employee must be paid for show-up time. Employers are required to apply the federal or state minimum and overtime law that provides employees the greatest benefits. For more information on state minimum wage and overtime laws, visit our pages on minimum wage and overtime.
Contributed by Suzanne Mathews