If your small business has non-exempt employees covered by the Fair Labor Standards Act (FLSA), you
are required to pay those employees in accordance with its minimum wage and overtime requirements
for all “hours worked.” This may seem like a simple requirement, but figuring out what is considered
“hours worked” may be more complicated than it seems at first glance. There are several activities that
the U.S. Department of Labor has determined should be considered as work (and therefore
compensable as hours worked) that may surprise you.
Waiting Time
Time an employee spends waiting may be considered work, but it depends upon the particular
circumstances. If an employee is waiting while on duty or has been engaged to wait, such as a plumber
who is waiting for the next service call or a firefighter who is playing a game of chess between
emergency calls, this waiting is considered to be part of their hours worked under the FLSA. This is
because such employees are not free to use the time for their own purposes; instead, the time waiting is
controlled by their employer and is an important aspect of their job. In contrast, if a truck driver arrives
at a destination at 12pm and is completely and expressly relieved from his or her duties until 6pm, when
the return trip is to begin, the off-duty time is not considered hours worked. Rather, the truck driver is
free to use the time for his or her own purposes and is simply waiting to be engaged.
On-Call Time
On-call employees who must stay at the employer’s premises or so close that they are unable to use the
time for their own purposes must be paid for the time spent on-call, as it is considered a part of their
hours worked. In contrast, on-call employees who are merely required to leave contact information with
their employer so they can be reached is not working within the FLSA and thus are not entitled to be
compensated in accordance with its provisions for that time.
Rest and Meal Periods
Many employers voluntarily provide short break periods (usually 20 minutes or less) for employees
who are compensated as working time. These break periods must be included as part of the
employees’ hours worked under the FLSA. However, if the employer provides a bona fide meal period
(typically 30 minutes or more) during which the employees are completely relieved of their duties for
the purpose of eating a regular meal, it is considered a rest period, and not as hours worked. This is true
even if the employee must remain on the employer’s premises during the meal period.
Lectures, Meetings, and Training Programs
An employee’s attendance at lectures, meetings, training programs, and similar activities may be
counted as working time. Such activities will not qualify as work time if all four of the following criteria
are met: (1) attendance is outside of the employee’s regular working hours; (2) attendance is voluntary
(the employee’s job would not be adversely affected by not attending); (3) the program is not directly
related to the employee’s job; (4) the employee does not perform any productive work during his or
her attendance at the program.
Travel
Whether travel is considered “hours worked” depends upon whether the travel is an integral part of the
principal activity the employee was hired to perform on the workday in question. Employees are
generally not considered to be working during the time they spend traveling to and from their
workplace. One exception is when an employee’s workday has ended, the employee is called back on
duty, and is asked to travel a substantial distance back to a worksite. The time spent traveling to and
from the worksite must be considered as hours worked. Similarly, if an employee, who usually works at
a particular site, is given a special work assignment in another location, travel to and from the other
location is considered to have been performed for the employer’s benefit and at his request. In those
circumstances, the time spent traveling to and from the special work site is considered as working time
under the FLSA. When an employee must travel as part of his principal work activity, for example, an
appliance deliveryman, that time is also considered as hours worked.
Sleeping
Employees who are on duty for periods of less than 24 hours are considered to be working even if they
sleep or engage in other personal activities when not busy with work duties. For those on duty for 24
hours or more, the employer must pay the employee for sleeping time and include that time as hours
worked in calculating overtime unless the parties have agreed otherwise. Even if the parties have agreed
to exclude sleeping time from the employee’s hours worked, they may do so for no more than eight
hours (if they agree to a sleeping time of more than eight hours, only eight hours will be excluded from
working time, and the rest of the period must be considered in the calculation of hours worked). In
order to exclude sleeping time from hours worked, the employer must provide adequate sleeping
facilities, and the employee must be able to have an uninterrupted night’s sleep (at least five hours). If
there are interruptions as a result of a call to duty, those periods must be included as working
time—and the entire period must be included if the employee is unable to get at least five hours of
sleep.
Time Suffered or Permitted to Work
Employees are entitled to be paid in accordance with the FLSA for all time suffered or permitted to
work. This includes situations in which employees engage in work outside of their normally scheduled
time without their employer’s express permission, but the employer is aware or has reason to be
aware, that the employee is doing so. For example, with the pervasiveness of smartphones, employees
who respond to emails from home may be entitled to be paid for this time as hours worked.
We Are Here to Help
Violations of the FLSA can result in substantial fines. The examples discussed above are only some of the
activities that may be considered hours worked under the FLSA. If you are confused about whether a
particular activity should be considered hours worked in computing your employees’ compensation, we
can help. Call our office today to schedule a meeting.
