Non-Working Time: Do You Know When It Must Be Paid?
You know that nonexempt employees must be paid for all hours they actually perform work. But what about time when they are not really working? The FLSA requires you to pay some of this time, too.
The Fair Labor Standards Act (FLSA) clearly requires you to pay nonexempt employees for the time that they are performing work for your organization. But, the Act and its implementing regulations also require you to pay them for some time they are not actually working, such as rest periods and certain travel time.
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The requirements can be confusing. Fortunately, regulations issued by the Department of Labor (DOL), found in 29 C.F.R. section 785, provide detailed guidance for determining what are hours worked that must be compensated. The five questions and answers below review the legal definition of working time and provide examples of when a nonexempt employee should be paid for that time.
1. What is the basic definition of working hours?
The Supreme Court provided the definition for working hours adopted by the FLSA regulations in its long-standing decision Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944). In that case, the Court determined that working hours include all time during which a nonexempt employee is engaged in physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and its business. (See 29 C.F.R. §785.7.) In addition, the time an employee spends after clocking in, getting to his job, and preparing for it generally should be paid. However, the time which the employee spends waiting, just because he arrived early, is not. (See 29 C.F.R. §785.7.)
As a general rule, employers do not have to pay for any time before and after the employee’s “principal activity” unless there is a contract, custom, or practice requiring pay for these preliminary and concluding activities. However, time spent by employees in activities before or after the regular workday must be counted as time worked if the activities are an integral and indispensable part of the employee’s principal activities. (See 29 C.F.R. §785.9.) Working hours also may include time when the employee does not actually perform any work but is engaged to wait. (See Q&A # 2, below.)
2. Do we have to pay nonexempt employees for time spent waiting?
Your obligation to pay for waiting time depends on the particular circumstances. According to the FLSA regulations, “facts may show that the employee was engaged to wait or they may show that he waited to be engaged. Such questions must be determined in accordance with common sense and the general concept of work or employment.” (See 29 C.F.R. §785.14.) The regulations generally distinguish between on duty time, off duty time, and on call time.
– On duty time. Where waiting is an integral part of the job, the employee is engaged to wait, and the time spent waiting is compensable work time. Typically, the periods of inactivity are of a short duration and unpredictable, and the employee cannot use the time effectively for his own purposes. (See 29 C.F.R. §785.15.) Examples provided by the regulations include:
– Off duty time. An employee is considered to be off duty during periods when he is “completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes.” An employee is not completely relieved from duty unless he is told in advance he may leave the job and that he will not have to begin work until a specified hour has arrived. (See 29 C.F.R. §785.16(a).)
– On call time. An employee who is required to remain on call on the employer’s premises is working while on call and must be paid for that time. In addition, an employee who must remain on call so close to the employer’s premises that he cannot use the time effectively for his own purposes is also working while on call. (See 29 C.F.R. §785.17.) In determining whether on call time should be paid, courts typically examine how much control the employer has over the employee and whether the employee can effectively use the on call time for personal purposes.
3. Do we have to pay nonexempt employees for meal and rest periods?
Meal and rest break pay requirements are fairly straightforward. Federal law generally does not require employers to give breaks; it only regulates how the breaks should be paid if they are provided.
An employer may treat meal breaks as unpaid personal time if they meet the conditions set out in the DOL regulations for bona fide meal periods. For the meal period to qualify as bona fide, the employee must be completely relieved from duty for the purposes of eating a meal and for a period of at least 30 minutes. A shorter period may qualify under special conditions. Employees do not have to be permitted to leave the premises as long as they are freed from duties during the meal period. The regulations emphasize that an employee is not relieved, however, if he is required to perform any duties while eating. (See 29 C.F.R. §785.19.) Note, too, that many states have statutes that require meal periods of 30 minutes or more.
(Download a free Meal Breaks model policy including HR best practices and legal background.)
Unlike most meal breaks, coffee breaks and rest periods of short duration (5 to 20 minutes) must be counted as paid hours worked. (See 29 C.F.R. §785.18.) States also often require specific paid rest breaks.
One exception to this pay rule is if the rest break is used by a nursing mother to express breast milk. The FLSA was recently amended to require employers with 50 or more employees to provide a nursing mother with "a reasonable break time" to express breast milk each time the employee needs to express milk for up to a year after her child's birth. Although the FLSA does not define what a "reasonable break time" period is, it does indicate that an employee does not have to be paid for the time. (See 29 U.S.C. §207(r)(2).) Employers with fewer than 50 employees also are covered by the break requirement unless they can show that the breaks would cause an "undue hardship by causing the employer significant difficulty or expense." (See 29 U.S.C. §207(r)(3).)
(Download a free Rest Breaks model policy including HR best practices and legal background.)
4. When do we have to pay nonexempt employees for time spent in training sessions?
According to the FLSA regulations, attendance at lectures, meetings, training programs, and similar activities should be counted as paid working time unless all of the following four criteria are met:
– Attendance is outside of the employee’s regular working hours;
– Attendance is voluntary;
– The course, lecture, or meeting is not directly related to the employee’s job; and
– The employee does not perform any productive work during such attendance. (See 29 C.F.R. §785.27.)
Attendance is not considered to be voluntary, and therefore must be compensated, if you require an employee to attend the sessions or if you lead the employee to believe that his position would be adversely affected by nonattendance. (See 29 C.F.R. §785.28.)
5. Are there special rules for pay for time nonexempt employees spend traveling during the workday?
Yes. The exclusion of time spent in travel as working time depends on the kind of travel involved.
(Download a free Travel model policy including HR best practices and legal background.)
– Home to work, ordinary situations. A nonexempt employee who travels from home before his regular workday and returns home at the end of the workday is engaged in ordinary home to work travel. This is true whether the employee works at a fixed location or at different job sites. Normal travel from home to work is not work time and does not have to be paid. (See 29 C.F.R. §785.35.)
– Home to work, emergency situations. During instances involving emergency situations, travel from home to work generally is work time. If an employee who has gone home after completing work is subsequently called out to travel a substantial distance to perform an emergency job for a customer, all time spent on that travel is working time. Note, however, that the DOL regulations do not address whether the time spent traveling from an employee’s home to his regular place of business in response to an emergency call is considered paid working time. (See 29 C.F.R. §785.36.)
– Home to work, special assignments. Employees who regularly work at a fixed location but are given special one day assignments to work in another city are entitled to be paid for the extra time spent traveling to that site. You can, however, deduct the employee’s normal home to work travel time from the travel time to the special work site when calculating the hours worked. (See 29 C.F.R. §785.37.)
– Travel as part of the regular job. For employees for whom travel is an integral part of their job, all travel hours are considered to be work time. In cases where employees are required to report to a meeting place to receive instructions or to perform other work, or to pick up certain items for work, the travel from the designated place to the workplace is part of the day’s work and must be counted as hours worked. (See 29 C.F.R. §785.38.)
– Overnight travel away from home. Travel away from home for an overnight trip is clearly work time when it cuts across the employee’s regular workday. The employee is simply substituting travel for other duties. Travel time on nonworking days is also considered work time if conducted during normal work hours. Regular meal period time is not counted as working time. (See 29 C.F.R. §785.39.)
– Transportation choice. If an employee who travels away from home is offered public transportation (such as transportation by airplane) but chooses to drive instead, the employer may count as hours worked either the actual time spent driving the car or the time the employer would have had to count as hours worked if the employee had taken the public transportation. (See 29 C.F.R. §785.40.) However, it is less clear what happens when the employer requires the employee to drive to the overnight destination. The most logical conclusion is that the time spent driving in this circumstance should be paid since driving appears to become a job duty for the nonexempt employee required to do the driving.
– Work while traveling. Of course, any time actually devoted to work while traveling must be counted as hours worked. (See 29 C.F.R. §785.41.)
Robin Thomas, J.D.
Personnel Policy Service, Inc.
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