HOURS WORKED[1]
Source: FOH Modernization revision 691, published 08/10/2016. Substantive revisions made after 08/10/2016 are noted at the end of affected provisions below. Historical information on revisions published prior to 08/10/2016 can be found at the link beside this chapter at www.dol.gov/agencies/whd/field-operations-handbook/
Table of Contents
31a00 Employees sent home for lack of work.
31a02 Homeworker’s waiting time.
31a03 Idle time during the normal workday while in travel status.
31b SLEEPING TIME AND CERTAIN OTHER ACTIVITIES
31b00 Less than 24 hours duty.
31b02 Employees residing temporarily on employer’s premises.
31b04 Radio announcers and performers.
31b05 Participation in athletic contests.
31b08 Emergency government employment and disaster relief work.
31b09 Hours worked by truck drivers, including team drivers.
31b10 Medical treatment during normal workday.
31b11 Book review by newspaper, radio, or television employees.
31b13 Changing clothes at home.
31b14 On-call employees required to remain at home.
31b15 Fire and disaster drills.
31b16 Inspections under the Occupational Safety and Health Act of 1970.
31b17 Training courses and programs.
31b18 Employees residing on employers’ premises: recording working time.
31b19 Hours of work for firemen and policemen.
31b20 Employees residing on the employer’s premises for 5 days a week.
31b21 Meal periods for employees under section 7(k).
31b22 Fire fighters: time spent sleeping.
31b23 Meal periods of less than 30 minutes.
31c00 Employees required to perform duties while traveling.
31c01 Operating employer’s vehicle for employee’s convenience.
31c02 Driving employer’s vehicle transporting other employees.
31c04 Travel where heavy, burdensome equipment is carried.
31c07 Travel by boat or helicopter.
31c08 Layover or on-call time of drivers and helpers.
31a PERIODS OF INACTIVITY
31a00 Employees sent home for lack of work.
If an employee is told upon reporting for work that there is no work available and is immediately sent home, he or she will not be considered to have spent any time working. If, however, the employee reports for work at the scheduled place at the prescribed time and is not immediately sent home but is suffered or permitted to wait for work after the regular shift was scheduled to begin, the time spent in waiting between the scheduled commencement of the shift and the time the employee starts work or is sent home is counted as working time. Some employment agreements provide for the payment of a minimum number of hours pay to an employee on those occasions when he or she reports for work and none is available. Pay arrangements of this kind are discussed in 29 CFR 778.220 -222. See FOH 32d04.
31a01 Rest periods.
(a) Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked.
(b) Where a regular rest period of known duration is longer than 20 minutes, the waiting time rules apply. In other words, if the employees are free to go where they please, and the rest period is long enough to permit the employees to use it for their own purposes, and if bona fide and not an attempt to evade or circumvent the Fair Labor Standards Act (FLSA) or Walsh-Healey Public Contracts Act (PCA), such periods are not hours worked.
(c) Unauthorized extensions of authorized breaks are not counted as hours worked for an employee when the employer had expressly and unambiguously communicated to the employee that:
(1) the authorized break may only last for a specific length of time;
(2) any extension of such break is contrary to the employer’s rules; and
(3) any extension of such a break will be punished.
31a02 Homeworker’s waiting time.
If the employer designates the exact time for reporting and the homeworker reports at that time and is compelled to wait, the time spent in waiting must be considered as hours worked. If the homeworker reports at a time which is not prearranged or at a time other than that specified by the employer and the employer is not prepared to accept the finished goods and charge out new material to the homeworker, the time spent in waiting will not be considered as hours worked.
31a03 Idle time during the normal workday while in travel status.
When employees are in travel status and the employer wishes to pay them for idle hours during which they normally would have worked had they been employed at their regular job and in their regular place of employment, we will respect the agreement of the parties and allow them to count the hours as hours worked. The hours must be counted as hours worked in all respects and they must be taken into consideration when computing overtime.
31b SLEEPING TIME AND CERTAIN OTHER ACTIVITIES
31b00 Less than 24 hours duty.
An employee who is required to be on duty for less than 24 hours is working even though permitted to sleep or engage in other personal activities when not busy. For example, a telephone operator who is required to be on duty for specified hours is working even though permitted to sleep when not answering calls. It makes no difference that facilities are furnished for sleeping. The employee’s time is given to the employer. The employee is required to be on duty and the time is work time.
31b01 Clothes changing and washup time where collective bargaining agreement makes no mention of practice.
There are certain instances in which clothes changing and washup activities by employees on the premises of the employer are integral parts of the principal activities of the employees because the nature of the work makes the clothes changing and washing indispensable to the performance of productive work by the employees, but the collective bargaining agreement (CBA) in effect in the establishment is silent as to whether this time should be included in, or excluded from, hours worked. Where such clothes changing and washup activities are the only pre-shift and post-shift activities performed by the employees on the premises of the employer, the time spent in these activities has never been paid for or counted as hours worked by the employer, and the employees have never opposed or resisted this policy in any manner although they have apparently been fully aware of it, there is a custom or practice under the CBA to exclude this time from the measured working time, and FLSA section 3(o) applies to the time.
(a) Clothes changing and washup time on a formula basis
An employer may set up a formula by which employees are allowed given amounts of time to perform clothes changing and washup activities, provided the time set is reasonable in relation to the actual time required to perform such activities. The time allowed will be considered reasonable if a majority of the employees usually perform the activities within the given time.
31b02 Employees residing temporarily on employer’s premises.
(a) There are certain circumstances (usually at locations such as hard-to-reach construction jobs, isolated dredging barges and offshore drilling sites) where practical considerations make it necessary for employees to remain temporarily on the employer’s premises and to eat and sleep there during their stay. In such situations, the employees shall not be considered as on “duty of 24 hours or more” if they have a regular schedule of hours and thereafter are relieved of duties except for extra work required by the exigencies of the job. Only the actual working time need be counted as hours worked.
(b) The rules governing “duty of 24 hours or more” (see 29 CFR 785.22) are applicable where, from all the conditions of employment, including the understanding of the parties, it is clear that the employee is employed to wait rather than waiting to be employed. Among the factors which would support such a conclusion are:
(1) the employee has no regular schedule of hours, or a schedule in name only, and is required to perform work on a helter-skelter basis at any time during the day or night; or
(2) the employee has a regular schedule of hours but the unscheduled periods are so cut through with frequent work calls that this time is not his or her own.
(c) Some employers, such as offshore oil well drilling contractors, arrange transportation to remote locations in such a way that two crews having regular work schedules as in FOH 31b02(a) above, arrive at the same time. One crew will ordinarily go to work immediately and the other must wait through an entire shift (or a substantial portion thereof) before starting work. At the end of the tour of duty at the worksite, one crew, after completing its last shift, must wait through the last shift (or a substantial portion thereof) of the other crew before crews are transported back from the worksite at the same time. Such waiting time on the initial and terminal days is as much an integral part of those particular 24-hour periods as the idle periods between the regular work shifts on the other workdays. Where the employees are not on call and are completely relieved of duty, such idle time on the initial and terminal days is not considered hours worked.
31b03 (Reserved.)
31b04 Radio announcers and performers.
Time spent by performers, including radio announcers on out-of-stretch (see FOH 32d08(a)) radio and television programs for which talent fees (as defined in 29 CFR 550) are paid, is not counted as hours worked provided the fee is sufficient to compensate for the straight time and overtime compensation which would normally be due for such time.
31b05 Participation in athletic contests.
As an enforcement policy, the WHD will not consider as hours worked under the FLSA or PCA any time spent by an employee as a participant in, or as an umpire, referee, scorer, or similar official in an athletic contest sponsored by the employer, if the participation of the employee in these activities is completely voluntary and if his or her regular employment is not conditioned upon participating in these activities.
31b06 (Reserved.)
31b07 Knife sharpening.
Knife sharpening activities of knifemen are an integral part of and indispensable to the various butchering activities for which they are employed. The time so spent is compensable under the FLSA.
31b08 Emergency government employment and disaster relief work.
(a) Since persons summoned or called upon by government or other public officials, pursuant to statutory authority, to engage in firefighting, national defense, civil defense, flood control, or other activities, become in legal effect employees of the state or Federal Government, the employer whose employees have been so engaged is not required to consider time spent in such activities as hours worked for the company during the workweek. Any money paid for such activities need not be included in determining the regular rate.
(b) Similarly, where contractors are specifically requested by federal, state, or local authority under the general police powers of the government concerned to furnish employees to render disaster relief services such as rescuing injured persons, restoring municipal services, clearing streets, and controlling damage, these contractors and their employees will be considered employees of the government and the FLSA applied in the same manner as in FOH 31b08(a) above. Thus, the time spent on such work need not be counted as hours worked, and any compensation paid for such emergency work need not be included in the regular rate. Such services are normally furnished without compensation to the contractor (or at cost) and the arrangement is terminated as soon as immediate needs are met.
(c) If a contractor contracts with a government agency for work following a disaster, to be performed as a commercial venture or as part of his or her regular business activity (as distinguished from FOH 31b08(b) above), the FLSA shall be applied in the regular manner.
31b09 Hours worked by truck drivers, including team drivers.
(a) Time spent in sleeping berths in trucks
Berths in trucks are regarded as adequate sleeping facilities for the purposes of 29 CFR 785.41 and 29 CFR 785.22. However, this rule applies to sleeping berth time of truck drivers or helpers only when they are on continuous tours of duty during trips away from home for a period of 24 hours or more. If the trip begins and ends at the home station and is performed within one working day (less than 24 hours), all time on duty on the truck is time worked (except, of course, for bona fide meal periods) even though some of that time is spent in the sleeping berth. See FOH 31b00.
(b) Tours of duty of 24 hours or more but less than 48 hours
FOH 31b12 and 29 CFR 785.22 describe excludable sleep time for hours of duty of 24 hours or more. On continuous tours of duty of more than 24 hours but less than 48 hours, 1 extra hour of sleep time in excess of the maximum 8 hours may be claimed for each hour beyond 40 that a continuous tour of duty extends, provided that the employee has actually slept such number of hours. For example, in a 42-hour continuous tour of duty, no more than 10 hours could be deducted for sleep time. Similarly, in a 45-hour continuous tour, a maximum of 13 hours could be deducted. However, in the absence of an express or implied agreement concerning the exclusion of sleep time, the time spent sleeping constitutes hours worked even though the tour of duty exceeds 24 hours. See FOH 31b12.
(c) Continuous tours of duty
(1) As indicated in 29 CFR 785.12 -.16, waiting or layover time will be considered off-duty time and not part of the employee’s hours of work if the employee is completely relieved of all duties and responsibilities, is permitted to leave the truck or temporary station to go anywhere, knows in advance that work will not resume until a specified time, and the period of layover is of sufficient length to be used effectively for the employee’s own purposes. Thus, no standard rule of thumb, such as “2-hour layover time” or “4-hour layover time” can be used to unequivocally state that a layover period of such length has automatically broken a continuous tour of duty. Whether or not a continuous tour of duty greater than 24 hours is interrupted by a waiting or layover time is a question of fact. For example, if a truck driver stops for a layover of 2 hours, but the stopping point happens to be in a remote location which has no available facilities (e.g., restaurants, etc.), the tour of duty has not been interrupted and the “off-duty” time is compensable hours worked.
(2) With regard to team truck drivers, because of the special circumstances under which they work, we would not regard a bona fide layover period as breaking a continuous tour of duty if the employer paid wages for that period.
(3) Time spent in non-compensable bona fide meal periods and bona fide regularly scheduled sleeping periods would not break a continuous tour of duty provided that such periods do not exceed the maximum limitations in 29 CFR 785.22 and the “40-hour rule” set forth in FOH 31b09(b) above. See FOH31b12.
31b10 Medical treatment during normal workday.
If an employer directs an employee, or any group of employees, to work beyond the regularly scheduled work shift, the normal workday of such employee, or group of employees, has been extended, and the same principle in 29 CFR 785.43 applies.
31b11 Book reviews by newspaper, radio, or television employees.
In some instances an employee of a newspaper, or radio or television station will read a particular book with the view to a possible book review story for use in the newspaper or on the air. This presents no problem as to hours worked where the reading is done in the course of the employee’s regular duties at the establishment or elsewhere at any time at the employer’s specific request. However, the reading may be done away from the employer’s establishment and outside duty hours, such as at the employee’s home in the evening, and on a speculative basis—that is, with the thought that a book review might be prepared. In such cases there is a substantial question as to whether the reading was done for the benefit of the employer or for the pleasure or information of the employee. In such cases, the WHD will not assert that such reading is hours worked even though the book is subsequently reviewed in the newspaper or on the air.
31b12 Sleeping time.
(a) Background
Regulations regarding the application of hours worked principles to sleeping time appear at 29 CFR 785.20 -.23, as well as at 29 CFR 552.102, which is specific to live-in domestic service employees. Field Assistance Bulletin No. 2016-1, Exclusion of Sleep Time from Hours Worked by Domestic Service Employees, provides additional guidance regarding those regulatory provisions, much of which is broadly applicable. This chapter describes those general principles; however, because the scenarios are derived from the field assistance bulletin, they are nearly exclusively from the domestic service context.
(b) Duty of less than 24 hours
As to an employee who does not live at his or her worksite and works shifts of fewer than 24 hours, an employer may not exclude any sleep time from hours worked, even if the employee is permitted to sleep while on duty. See 29 CFR 785.21 and Field Assistance Bulletin No. 2016-1.
Scenario:
A home care worker provides services to a person with a disability two nights a week from 7:00 p.m. to 7:00 a.m. Even if the employee sleeps for some or most of that time, all of the time (i.e., two 12-hour shifts, for a total of 24 hours each workweek) must be treated as compensable hours worked.
(c) Duty of 24 hours or more
If an employee is required to be on duty 24 hours or more, the employer may exclude a bona fide, regularly scheduled sleeping period of 8 hours or less from hours worked if certain requirements are met. These three requirements are that the employee be provided adequate sleeping facilities, the employee can usually enjoy an uninterrupted night’s sleep, and the employer and employee have an expressed or implied agreement to exclude the sleep time from hours worked. See 29 CFR 785.22(a) and Field Assistance Bulletin No. 2016-1.
(1) Adequate sleeping facilities are furnished by the employer
Whether an employer has provided adequate sleeping facilities to an employee depends on the facts and circumstances of a particular arrangement. In general, an employer must ensure that the employee has access to basic sleeping amenities, such as a bed and linens, reasonable standards of comfort, and basic bathroom and kitchen facilities. The designated sleeping area and other facilities can be shared or private.
Context is important in making assessments of whether sleeping facilities are adequate. This general description applies in the domestic service context and may apply in many other contexts, but it does not foreclose the possibility that in other circumstances (e.g., if an employee leads overnight camping excursions) different types of facilities could meet this requirement. See 29 CFR 785.22(a) and Field Assistance Bulletin No. 2016-1.
Scenario:
A personal care attendant is assigned by a home care agency to provide home care services to a consumer in the consumer’s home from 7:00 p.m. on Fridays until 9:00 p.m. on Sundays. The employee sleeps in a second bed in the consumer’s bedroom, and he or she has use of the rest of the apartment, including the kitchen and bathroom. This employee has adequate sleeping facilities.
(2) The employee can usually enjoy an uninterrupted night’s sleep (i.e., 5 consecutive hours)
An employee can “usually enjoy an uninterrupted night’s sleep” if an employer’s interruptions that prevent him or her from getting 5 consecutive, uninterrupted hours of sleep occur less than half the time. Interruptions to an employee’s 5 consecutive hours of sleep that occur during half or more than half of an employee’s shifts are too frequent to meet this requirement. See 29 CFR 785.22(a) and Field Assistance Bulletin No. 2016-1.
Scenario 1:
If a home health aide is hired to work three 24-hour shifts each week for a consumer who needs regular monitoring at all times, including overnight, then it would not be appropriate for the employer to exclude any time the employee manages to sleep from his or her compensable hours worked because the employee cannot usually enjoy an uninterrupted night’s sleep.
Scenario 2:
If a home health aide works three 24-hour shifts for a particular consumer each week, and on average the consumer wakes the aide for assistance during only one out of every three shifts, the requirement that the aide can usually enjoy an uninterrupted night’s sleep would be met.
(3) There is an expressed or implied agreement to exclude sleep time
The requirement to have an expressed or implied agreement regarding the exclusion of sleep time can be fulfilled by a written or oral agreement, or implied by the parties’ conduct. No such agreement exists where an employee has objected to the exclusion of sleep time from his or her hours worked. See 29 CFR 785.22(a) and Field Assistance Bulletin No. 2016-1.
Scenario:
An employee has been employed for approximately 3 months and is required to work shifts of 24 hours or more. Based on the employer’s usual practice, the employee is not paid for the hours between 11:00 p.m. and 6:00 a.m., which are considered sleep time, and the employee has never objected to the exclusion of sleep time. The employer and employee have an implied agreement to exclude sleep time.
(4) Amount of sleep time that can properly be excluded
An employer of an employee who does not reside at the worksite, works shifts of 24 hours or longer, and meets the additional requirements for the exclusion of sleep time, may exclude from the employee’s hours worked no more than 8 hours of sleep time in each 24-hour period. See 29 CFR 785.22(a). These 8 hours need not be at night, but they must occur during a fixed window. See 29 CFR 785.22(a); WHD Opinion Letter FLSA (September 11, 1987); and Field Assistance Bulletin No. 2016-1.
Scenario:
If a home health aide provides home care services to a consumer in the consumer’s home from 7:00 p.m. on Fridays until 9:00 p.m. on Sundays, assuming the threshold requirements for excluding sleep time are met, his or her employer could exclude from his or her hours worked a sleeping period, for example, from 11:00 p.m. to 5:30 a.m. (i.e., for a 6.5-hour sleeping period) or from 10:00 p.m. to 6:00 a.m. (i.e., for an 8-hour sleeping period), but may not exclude sleep time when he or she works from 10:00 p.m. to 7:00 a.m. (i.e., for a 9-hour sleeping period) or for 8-hour periods that vary each weekend.
(d) Live-in employees
Certain sleep time rules apply to “live-in” employees, who are employees who reside at their worksites, including live-in domestic service employees (i.e., employees who reside at the private homes in or about which they provide household services). An employee is deemed to reside at his or her worksite if he or she lives there either on a “permanent basis,” meaning that he or she stays there 7 nights a week and has no other home, or stays for “extended periods of time,” meaning that he or she works and sleeps there for 5 days a week (i.e., 120 hours or more) or 5 consecutive days or nights, regardless of the total number of hours. See 78 FR 60474, FOH 25n02(a), and FOH 31b20.
Employers of live-in employees may exclude sleep time from those employees’ hours worked provided the following conditions are met: the employer and employee have a reasonable agreement to exclude sleep time, and the employer provides the employee private quarters in a homelike environment. See 29 CFR 785.23, Wage and Hour Memorandum – 88.48 (June 30, 1988), and Field Assistance Bulletin No. 2016-1.
(1) Reasonable agreement
The reasonable agreement “must be an employer-employee agreement and not a unilateral decision by the employer,” and it “should normally be in writing in order to preclude any possible misunderstanding of the terms and conditions of an individual’s employment” (FOH 31b18(b)). Note: the WHD will accept “any reasonable agreement of the parties which takes into consideration all of the pertinent facts” (29 CFR 785.23). In other words, the reasonable agreement should reflect the realities of the particular situation. For example, sleep time may only reasonably be excluded if an employee regularly has the opportunity to sleep overnight, rather than if the employee is present to actively perform around-the-clock work. See Field Assistance Bulletin No. 2016-1.
(2) Private quarters in a homelike environment
To exclude a live-in employee’s sleep time from his or her hours worked, an employer must provide private quarters in a homelike environment. See Field Assistance Bulletin No. 2016-1 and Wage and Hour Memorandum – 88.48 (June 30, 1988).
“Private quarters” are a living and sleeping space that is separate from the person receiving services or any other employees. Although in most cases “private quarters” will mean a separate bedroom, the sleep time requirements call for consideration of the particular circumstances of the case. For example, if a home care worker is a family or household member with whom the person receiving services already shared a residence before becoming a paid caregiver (e.g., a spouse or domestic partner), the worker’s existing arrangement will be considered private quarters. Or, solely in the context of a private home as opposed to at the site of a business operation, if a home care worker provides live-in services to an individual who does not have a residence with enough space to give the worker his or her own bedroom, but the home is arranged in a manner designed to give the employee as much privacy as reasonably possible, that arrangement could fulfill this requirement. See Wage and Hour Memorandum – 88.48 (June 30, 1988) and Field Assistance Bulletin No. 2016-1.
A “homelike environment” is a space that includes, in addition to private quarters, facilities for cooking and eating, a bathroom, and a space for recreation. These additional facilities may be shared by the provider and consumer and/or other household members. See Wage and Hour Memorandum – 88.48 (June 30, 1988); WHD Opinion Letter FLSA (June 25, 1990); and Field Assistance Bulletin No. 2016-1.
Scenario:
An employee, who provides home care services and has no other home, and a consumer live together in a two-bedroom apartment with a living room, kitchen with dining space, and bathroom. The consumer uses one of the bedrooms, and the provider uses the other, meaning he or she sleeps there and stores some of his or her personal possessions there. The provider’s bedroom contains a bed, night table, dresser, two lamps, a desk, and a chair. Both the consumer and provider use the living room, kitchen, and bathroom. The provider, consumer, and a third party home care agency, which paired the two individuals and supervises the provider’s work, all signed a written agreement that, among other things, provides that the employee’s hours worked will not include the hours between 11:00 p.m. and 7:00 a.m. when he or she sleeps, except on the rare occasions the consumer needs assistance during the night. In these circumstances, because the employee has private quarters in a homelike environment and a reasonable agreement with his or her employers regarding the exclusion of sleep time, the consumer and the agency may exclude from the home care worker’s hours worked the 8 hours per night between 11:00 p.m. and 7:00 a.m spent sleeping.
(3) Amount of sleep time that can be excluded for an employee who resides at the worksite on a permanent basis
If a domestic service employee resides at the private home that is his or her worksite on a permanent basis (i.e., has no other home), the employer and employee may agree to not count more than 8 hours per night as sleep time as long as the employee is paid for some other hours during the workweek. Although the Department of Labor (DOL) has not set a specific number of hours that must be compensated in order to permit the exclusion of the sleep time of an employee who resides on the premises permanently, the circumstances must be such that the agreement regarding work and non-work time is reasonable. A variety of agreements might meet this standard, as workers’ schedules will vary based on the particular arrangement and needs of the person receiving services; there is no particular schedule necessary to make an agreement reasonable. See Administrator Interpretations Letter FLSA 2014-1 and Field Assistance Bulletin No. 2016-1.
Scenario 1:
If a live-in home care worker and his or her employer agree to exclude 8 hours of sleep time per night, and the employee is paid an hourly rate for services he or she performs between the hours of 8:00 p.m. and 10:00 p.m. each evening and 6:00 a.m. and 8:00 a.m. each morning, that agreement would typically be reasonable.
Scenario 2:
If a live-in home care worker’s sole responsibility is to be at the residence 5 nights per week from 10:00 p.m. to 8:00 a.m., it will likely be reasonable to agree to treat 2 of those 10 hours as hours worked and exclude the remaining 8 hours as sleep time.
Scenario 3:
It will typically be reasonable to exclude sleep time during weeknights if a live-in home care worker and his or her employer agree that 4 hours per day spent in the residence on 2 weekdays and each weekend day are hours worked that must be compensated.
Scenario 4:
If a live-in home care worker’s sole responsibility is to be at the residence for 8 hours each night, an agreement to exclude all time the employee is required to be on the premises will not be reasonable, nor would an agreement to consider only 1 hour per day to be hours worked.
(4) Amount of sleep time that can be excluded for an employee who resides at the worksite for extended periods of time
If a domestic service or residential care employee resides at his or her worksite for an extended period of time (i.e., does not live there exclusively but meets the residency requirements), the employer and employee may agree to not count more than 8 hours per night as sleep time as long as the employee is paid for at least 8 hours during the 24-hour period. See Field Assistance Bulletin No. 2016-1 and Administrator Interpretations Letter FLSA 2014-1.
Scenario 1:
A home care worker works and sleeps at a private home from Monday through Friday each week. Because the consumer to whom he or she provides services attends a day program, the provider is off duty between 8:30 a.m. and 3:30 p.m. He or she and the family of the consumer have a written agreement regarding this off-duty time and under which the provider’s sleep time, from 10:00 p.m. to 6:00 a.m., is excluded from hours worked. His or her work time would therefore be 9 hours per day (i.e., 2.5 hours from 6:00 a.m. to 8:30 a.m. and 6.5 hours from 3:30 p.m. to 10:00 p.m.). Because the provider is paid for more than 8 hours in each 24-hour period, assuming the threshold requirements for excluding sleep time are met, the family can exclude all 8 hours of the provider’s sleep time (subject to the limitations described below).
Scenario 2:
The schedule of the home care worker in Scenario 1 changes such that he or she does not begin her evening shift until 5:30 p.m. and his or her sleeping period is for 7 hours, between 11:00 p.m. and 6:00 a.m. In this case, his or her work time is 8 hours per day (i.e., 2.5 hours from 6:00 a.m. to 8:30 a.m. and 5.5 hours from 5:30 p.m. to 11:00 p.m.). Because the provider is paid for 8 hours in each 24-hour period, the family may exclude the 7 hours of sleep time (subject to the limitations described below).
(e) Interruptions to sleeping time
(1) Any interruption
As to an employee who is on duty for 24 hours or more or a live-in employee, any interruption by a call to duty of what might otherwise be properly excluded sleep time must be treated as hours worked. See 29 CFR 785.22(b), 29 CFR 552.102(a), and Field Assistance Bulletin No. 2016-1.
Scenario 1:
During a home care worker’s sleeping period, a consumer calls out for assistance with going to the bathroom. The employee provides that assistance for 20 minutes. Those 20 minutes must be treated as paid time.
Scenario 2:
A person receiving services is sick, and the home care worker tends to him or her for 2 hours in the middle of the night. Those 2 hours are hours worked even if they are within the provider’s usual sleep time.
(2) Reasonable periods of sleep totaling 5 hours
If an employee cannot get at least 5 hours of sleep in a sleeping period, the entire period must be counted as hours worked. These 5 hours need not be 5 continuous, uninterrupted hours of sleep, but interruptions must not be so frequent as to prevent reasonable periods of sleep that add up to at least 5 hours. If interruptions are so frequent as to prevent reasonable periods of sleep totaling at least 5 hours, the entire period must be considered hours worked. See 29 CFR 785.22(b); FOH 31b12(b); WHD Opinion Letter FLSA (September 11, 1987); and Field Assistance Bulletin No. 2016-1.
Scenario 1:
A live-in home care worker’s regular sleep time is from 11:00 p.m. to 7:00 a.m. If the person for whom he or she works wakes his or her up once at 4:30 a.m. for assistance taking medication, an interruption that lasts half an hour, those 30 minutes must be paid; however, the remainder of the time (i.e., the 5.5 hours from 11:00 p.m. to 4:30 a.m. and the 2 hours from 5:00 a.m. to 7:00 a.m.) may be excluded as usual because the employee got reasonable periods of sleep totaling more than 5 hours.
Scenario 2:
A live-in home care worker’s regular sleep time is from 11:00 p.m. to 7:00 a.m. If the person receiving services wakes the home care worker up at 2:00 a.m. for assistance going to the bathroom, an interruption that lasts 15 minutes, those 15 minutes must be paid; however, the remainder of the time (i.e., the 3 hours between 11:00 p.m. and 2:00 a.m. and the 4 hours, 45 minutes between 2:15 a.m. and 7:00 a.m.) may be excluded from hours worked as usual because the employee got reasonable periods of sleep totaling more than 5 hours, even though no single period of 5 hours or more was uninterrupted.
Scenario 3:
If the person receiving services needs the employee’s assistance at 12:30 a.m., 2:00 a.m., 4:00 a.m., 5:00 a.m., and 6:00 a.m. for 20 minutes each time, the periods between interruptions are not reasonable periods of sleep, and therefore the 5-hour threshold will not have been met.
[01/13/2017]
31b13 Changing clothes at home.
Employees who dress to go to work in the morning are not working while dressing even though the uniforms they put on at home are required to be used in the plant during working hours. Similarly, any changing which takes place at home at the end of the day would not be an integral part of the employees’ employment and is not working time.
31b14 On-call employees required to remain at home.
Where an on-call employee performs services for his employer at home and yet has long periods of uninterrupted leisure during which he or she can engage in the normal activities of living, the WHD will accept any reasonable agreement of the parties for determining the number of hours worked. As an example, this policy will apply to an on-call employee who is required by the employer to remain at home to receive telephone calls from customers when the company office is closed. The agreement should take into account not only the actual time spent in answering the calls but also some allowance for the restriction on the employee’s freedom to engage in personal activities resulting from the duty of answering the telephone.
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