Continuing our “Hours Worked” series, we will discuss the topic sleeping time and when it should be counted as hours worked for purposes of minimum wage and overtime under the Fair Labor Standards Act (FLSA). Some occupations require an employee to be on the employer’s premises and available to work even though there are periods of time when actual work is not being performed. In some of these situations, it may be appropriate for employees to spend some time sleeping. The question then arises, when must an employer pay for this sleeping time and include it in its overtime calculations?
Federal regulations address three situations in which the sleeping time questions may arise: 1) employees on duty less that 24 hours, 2) employees on duty 24 or more hours, and 3) employees who reside on their employer’s premises or who work from home. 29 C.F.R. 785.20 Each is discussed below.
Employees on duty less than 24 hours
In some situations, employers are required to pay employees who work shifts less than 24 hours but spend time sleeping. This usually occurs when the employer requires the employee to be present on its premises during a shift but the employee is not expected to perform his or her main job duties during the entire shift. The classic example of this situation is a firefighter.
A firefighter, when on duty, is typically required to be present at the fire station unless they are responding to an emergency call or performing some other community service. When the fire fighter is not involved in these and other maintenance or safety activities, they may be allowed to sleep. The employer would be required to pay the firefighter for his or her sleep time. This is because the firefighter has forfeited control of his activities to the benefit of the employer who may call on the employee at any time while the employee remains on duty to perform work. 29 C.F.R. 785.21
Employees on duty 24 or more hours
Employers must pay employees who remain on duty for 24 hours or more for sleeping time and any bona fide meal periods. They must also include the time in any overtime calculations, unless otherwise agreed to by the parties. Employees who are required to be on duty 24 or more hours may enter into an agreement with the employer to exclude sleeping time and meal periods from hours worked provided that the employer provides adequate sleeping facilities and that the employee is generally permitted to have 8 hours of uninterrupted sleep.
Additionally, the employer can only take credit for a maximum of 8 hours of sleep time. If an employee’s sleep time is interrupted to perform work and the employee does not get a good night’s rest (defined as a minimum of 5 hours of sleep), the employer cannot take any sleep time credit and must count all time, included any hours the employee slept, as hours worked. If the employee is required to perform work during sleeping time, but is otherwise able to get a good night’s rest (more than 5 hours of sleep), the employer only needs to pay the employee for the time the employee actually worked. 29 C.F.R. 785. 22
Employees residing on employer’s premises or working at home
Employers are not typically required to pay employees for sleeping time if the employee resides on the employer’s premises or works from home. Examples of these types of situations may include nannies, housekeepers, and employees working in remote locations. In these situations, the employee generally has sufficient periods of time in which he or she is free to engage in personal activities or leave the employer’s premises for personal reasons. Noting the challenge these types of situations present when determining when to count time as hours worked, the Department of Labor gives significant weight to the agreement of the parties regarding daily work requirements, so long as the agreement is reasonable. 29 C.F.R. 785.23
Sleeping time and night shift
The question frequently arises is whether employees who work a night shift are entitled to sleep while on their shifts. The answer to this question is that sometimes employers may not prevent night shift employees from sleeping while on the job.
First, there are no night shift laws or night shift regulations that require employers to permit night shift employees to sleep on the job. Instead, it usually depends on whether there are times during the shift when the employee is not engaged in their primary job duties but instead is waiting for work. In these situations, employers cannot refuse to pay employees who sleep on the job. However, employers may create policies that prohibit employees from sleeping on the job when waiting and may penalize employees for doing so.
Sleeping time and state laws
Many states have the same sleeping time overtime rules as the Fair Labor Standards Act (FLSA) as enforced by the US Department of Labor (DOL). However, there are others that have established more restrictive sleeping time overtime laws. Below are links to individual states and their waiting time rules:
The situations described above provide a general overview for when sleeping time is considered hours worked for purposes of minimum wage and overtime compliance. However, there may be circumstances that may require additional legal considerations. For instance, states may have their own minimum wage and overtime laws which include their own standards for when an employee must be paid for sleeping time.
And as mentioned in our previous articles, employers are required to apply the federal or state minimum and overtime laws that provide employees the greatest benefits. Therefore, when in doubt, consult a lawyer who specializes in employment law to ensure compliance with federal minimum wage and overtime laws.
Below are links to other topics covered in our FLSA – Hours Worked series: