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Hours Worked Under the Fair Labor Standards Act (FLSA)
This fact sheet provides general information concerning what
constitutes compensable time under the FLSA. The Act requires
that employees must receive at least the minimum wage and may
not be employed for more than 40 hours in a week without receiving
at least one and one-half times their regular rates of pay for
the overtime hours. The amount employees should receive cannot
be determined without knowing the number of hours worked.
Definition of "Employ"
By statutory definition the term "employ" includes
"to suffer or permit to work." The workweek ordinarily
includes all time during which an employee is necessarily required
to be on the employer's premises, on duty or at a prescribed
work place. "Workday", in general, means the period
between the time on any particular day when such employee commences
his/her "principal activity" and the time on that
day at which he/she ceases such principal activity or activities.
The workday may therefore be longer than the employee's scheduled
shift, hours, tour of duty, or production line time.
Application of Principles
Employees "Suffered or Permitted" to work: Work not
requested but suffered or permitted to be performed is work
time that must be paid for by the employer. For example, an
employee may voluntarily continue to work at the end of the
shift to finish an assigned task or to correct errors. The reason
is immaterial. The hours are work time and are compensable.
Waiting Time: Whether waiting time is time worked under the
Act depends upon the particular circumstances. Generally, the
facts may show that the employee was engaged to wait (which
is work time) or the facts may show that the employee was waiting
to be engaged (which is not work time). For example, a secretary
who reads a book while waiting for dictation or a fireman who
plays checkers while waiting for an alarm is working during
such periods of inactivity. These employee have been "engaged
to wait."
On-Call Time: An employee who is required to remain on call
on the employer's premises is working while "on call."
An employee who is required to remain on call at home, or who
is allowed to leave a message where he/she can be reached, is
not working (in most cases) while on call. Additional constraints
on the employee's freedom could require this time to be compensated.
Rest and Meal Periods: Rest periods of short duration, usually
20 minutes or less, are common in industry (and promote the
efficiency of the employee) and are customarily paid for as
working time. These short periods must be counted as hours worked.
Unauthorized extensions of authorized work breaks need not be
counted as hours worked when the employer has expressly and
unambiguously communicated to the employee that the authorized
break may only last for a specific length of time, that any
extension of the break is contrary to the employer's rules,
and any extension of the break will be punished. Bona fide meal
periods (typically 30 minutes or more) generally need not be
compensated as work time. The employee must be completely relieved
from duty for the purpose of eating regular meals. The employee
is not relieved if he/she is required to perform any duties,
whether active or inactive, while eating.
Sleeping Time and Certain Other Activities: An employee who
is required to be on duty for less than 24 hours is working
even though he/she is permitted to sleep or engage in other
personal activities when not busy. An employee required to be
on duty for 24 hours or more may agree with the employer to
exclude from hours worked bona fide regularly scheduled sleeping
periods of not more than 8 hours, provided adequate sleeping
facilities are furnished by the employer and the employee can
usually enjoy an uninterrupted night's sleep. No reduction is
permitted unless at least 5 hours of sleep is taken.
Lectures, Meetings and Training Programs: Attendance at lectures,
meetings, training programs and similar activities need not
be counted as working time only if four criteria are met, namely:
it is outside normal hours, it is voluntary, not job related,
and no other work is concurrently performed.
Travel Time: The principles which apply in determining whether
time spent in travel is compensable time depends upon the kind
of travel involved.
Home To Work Travel: An employee who travels from home before
the regular workday and returns to his/her home at the end of
the workday is engaged in ordinary home to work travel, which
is not work time.
Home to Work on a Special One Day Assignment in Another City:
An employee who regularly works at a fixed location in one city
is given a special one day assignment in another city and returns
home the same day. The time spent in traveling to and returning
from the other city is work time, except that the employer may
deduct/not count that time the employee would normally spend
commuting to the regular work site.
Travel That is All in the Day's Work: Time spent by an employee
in travel as part of his/her principal activity, such as travel
from job site to job site during the workday, is work time and
must be counted as hours worked.
Travel Away from Home Community: Travel that keeps an employee
away from home overnight is travel away from home. Travel away
from home is clearly work time when it cuts across the employee's
workday. The time is not only hours worked on regular working
days during normal working hours but also during corresponding
hours on nonworking days. As an enforcement policy the Division
will not consider as work time that time spent in travel away
from home outside of regular working hours as a passenger on
an airplane, train, boat, bus, or automobile.
Typical Problems
Problems arise when employers fail to recognize and count
certain hours worked as compensable hours. For example, an
employee who remains at his/her desk while eating lunch and
regularly answers the telephone and refers callers is working.
This time must be counted and paid as compensable hours worked
because the employee has not been completely relieved from
duty.
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