Hours worked

Scope

The FLSA requires that a nonexempt employee be paid time and one-half the regular rate for all “hours worked.”

Regulatory citations

• None

Key definitions

• None

Summary of requirements

The Wage and Hour Division enforces federal minimum wage, overtime pay, recordkeeping, and the child labor requirements of the Fair Labor Standards Act (FLSA). It also enforces the labor requirements of the:

• Davis-Bacon and Related Acts,
• McNamara O’Hara Service Contract Act (SCA),
• Contract Work Hours and Safety Standards Act, and
• Copeland Anti-Kickback Act.

The FLSA requires that a nonexempt employee be paid time and one-half the regular rate for all “hours worked” in excess of 40 during a work week. In order to determine what overtime is owed, hours worked must be calculated.

Usually, that is relatively simple. Hours worked includes all the time the employee is doing principal duties, whether directed to do so, or merely permitted to do so. “Volunteer” or “off-the-clock” work must be counted.

By statutory definition the term “employ” simply means “to suffer or permit to work.” However, the term “work” is not specifically defined by law. In a case from 1944, the U.S. Supreme Court defined ‘work’ as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” (Tennessee Coal, Iron, and Rail v. Muscoda Local No 123). Most state labor agencies use a variation of this interpretation.

Complications arise with certain out-of-the-ordinary or peripheral activities, such as waiting time, rest or meal periods, on call time, travel time, training time, and wash up or dressing time.

Waiting time. Most jobs involve some waiting. The secretary waits for the boss to revise a letter. The truck driver waits in line to deliver her load. Such waiting is part of the job and must be counted as hours worked. However, where employees are relieved of their duties for a period long enough that they can use the time for their own purposes, the time need not be counted.

Off duty. Periods during which an employee is completely relieved from duty and which are long enough to enable the employee to use the time effectively for his own purposes are not considered “hours worked.” The employee is not completely relieved from duty and cannot use the time effectively for his own purposes unless he is definitely told in advance that he may leave the job and that he will not have to commence work until a definitely specified hour has arrived. Whether the time period is long enough to enable the employee to use the time effectively for his own purposes depends upon all of the facts and circumstances of the case.

On call. An employee who is required to remain “on call” on the employer’s premises or so close to it that the employee cannot use the time effectively for their own purposes is working while “on call.”An employee who is not required to remain on the employer’s premises, but is merely required to leave word at his home or with company officials where he may be reached, is not working while on call. Similarly, employees who are at or near their work stations waiting for a machine to be repaired or materials to be delivered are “working.”

Rest and meal times. Rest periods of short duration, running from five minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. Such rest periods must be counted as hours worked. Unauthorized extensions, which are contrary to company rules, need not be counted.

Bona fide meal periods are not considered to be hours worked. Bona fide meal periods do not include coffee breaks or time for snacks. The employee must be completely relieved from duty for the purposes of eating regular meals.

Ordinarily, 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at her machine is working while eating.

Sleeping time. Under some unusual conditions, an employee is considered to be working, even though some of his time is spent in sleeping.

Less than 24-hour on-duty time. If an employee is required to be on duty for up to 24 hours – even though he is permitted to sleep or engage in personal activities when not busy, the entire time is considered “work time.” For example, a telephone operator who is required to be on duty for certain specified hours is working even though she is permitted to sleep when not answering calls. Her time is given to her employer, she is required to be on duty, and the time is considered “hours worked.”

More than 24-hours on-duty time. When a job involves 24-hours or more of on-duty time, the employer and employee may agree to:

• Exclude meal periods and not more than eight hours of scheduled sleep from the hours worked; or
• When there is no such agreement, meal and sleep periods constitute paid hours worked.

If sleep period is interrupted by a call to duty, the time must be counted as hours worked. If employee doesn’t get at least five hours’ sleep during a scheduled period, the entire time is considered working time.

An employee who resides on his employer’s premises permanently, or for an extended period, is not considered as working all the time he is on the premises. In this situation, it is difficult to determine the exact hours worked and any reasonable agreement which takes into consideration all the circumstances will be acceptable.

Travel time. The rules for when travel time counts as hours worked are complicated and may vary, depending on the time of day and even the day of the week. Some general rules are:

• Emergency response travel from home to a customer’s site after regular workday hours constitutes hours worked;
• Travel between worksite locations during a routine workday would be hours worked, but not the time spent driving to the initial worksite;
• Travel to and from work-related meetings outside t he office would be hours worked;
• Commuting time to and from home is not hours worked, even if employee uses a company vehicle;
• When an employee goes on a single day trip, time spent traveling is considered work time, with the exception of meals and time spent traveling to the departure point; and
• For overnight travels, time spent driving or during the employee’s normal work hours must be counted as hours worked, but not time spent as a passenger outside of regular working hours.

Commuting time to and from home is not paid work time, even if employee uses company vehicle. When an employee goes on a single-day trip, time spent traveling is considered work time.

An employer may consider travel to and from airport to be commuting time and non-compensable. If employee performs work while traveling as a passenger, that time is compensable. All travel that is compensable must be counted as work time.

Training. Attending lectures, meetings, training programs, and other similar activities does not have to be considered work hours when:

• Attendance is voluntary,
• Attendance is outside of normal work hours,
• The event is not directly job-related, and
• The employee performs no productive work during this period.

Training may be considered as directly related to an employee’s job if it is designed to make the employee handle his job more effectively, or to add new skills. In some cases, apprenticeship training may be excluded from working time.

Principal duties/Preliminary and concluding activities. Employees must be paid for all time spent on their principal work activities. All time spent in preliminary and concluding activities integral to the job must be counted as “hours worked.” However, time spent walking to the job or for the employee’s own convenience need not be counted. Wash-up time must be counted as hours worked if required by the nature of the job, unless excluded in a collective bargaining agreement.

Miscellaneous activities. Additional activities that are generally considered to be “working time” include:

• Adjusting grievances,
• Waiting for and receiving medical attention, and
• Public/charitable work done at the employer’s request.

Full-time employment. The Fair Labor Standards Act does not define “full-time employment” or “part-time employment.” This is a matter generally left to the employer. Whether an employee is considered full-time or part-time does not change the application of the FLSA.

For statistical purposes, a standard workweek is defined by the Bureau of Labor Statistics (BLS) as one in which usual work hours are between 35 and 44 hours. Extended workweeks are those in which the usual work hours are between 45 and 99 hours.

Flexible schedules. A flexible work schedule is an alternative to the traditional 9 to 5, 40-hour work week. It allows employees to vary their arrival and/or departure times. Under some policies, employees must work a prescribed number of hours a pay period and be present during a daily “core time.”

The Fair Labor Standards Act does not address flexible work schedules. Alternative work arrangements such as flexible work schedules are a matter of agreement between the employer and the employee (or the employee’s representative) and do not affect the FLSA overtime calculations.

Holidays. FLSA does not require payment for time not worked, such as vacations or holidays (federal or otherwise). These benefits are generally a matter of agreement between an employer and an employee (or the employee’s representative).

Job sharing. Job sharing means that two (or more) workers share the duties of one full-time job, each working part time, or two or more workers who have unrelated part-time assignments share the same budget line. The Fair Labor Standards Act does not address job sharing and the FLSA requirements are applied to each individual separately. Job sharing is a matter of agreement between an employer and an employee (or the employee’s representative).

The benefits of job sharing are said to include increased morale and productivity. Job sharing can also be an attractive way to recruit new employees and retain current ones. In order for a job sharing arrangement to be successful, however, both individuals must be able to handle the position as efficiently as one person.

Night work and shift work. Extra pay for working night shifts is a matter of agreement between the employer and the employee (or the employee’s representative). FLSA does not require extra pay for night work.

Overtime. For covered, nonexempt employees, FLSA requires overtime pay to be at least one and one-half times an employee’s regular rate of pay after 40 hours of work in a workweek. Some exceptions apply under special circumstances to police and firefighters and to employees of hospitals and nursing homes.

Some states have overtime laws. In cases where an employee is subject to both the state and federal overtime laws, the employee is entitled to overtime according to the higher standard (i.e., the standard that will provide the higher overtime pay).

Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee’s representative).

The Contract Work Hours and Safety Standards Act (CWHSSA) requires contractors and subcontractors on most federal contracts over $100,000 for services or construction to pay laborers and mechanics at least one and one-half times their basic rate of pay for all hours worked over 40 in a workweek. CWHSSA also applies to most federally assisted construction contracts.

Part-time employment. The Fair Labor Standards Act does not address part-time employment. But, whether an employee is considered full-time or part-time does not alter the Act’s application. For statistical purposes, the Bureau of Labor Statistics defines part-time employment as working less than 35 hours a week.

Recordkeeping and reporting. Every employer covered by the FLSA must keep certain records for each covered, nonexempt worker. There is no required form for the records, but the records must include accurate information about the employee and data about the hours worked and the wages earned. The following is a listing of the basic records that an employer must maintain:

• Employee’s full name and social security number.
• Address, including zip code.
• Birth date, if younger than 19.
• Sex and occupation.
• Time and day of week when employee’s workweek begins.
• Hours worked each day and total hours worked each workweek.
• Basis on which employee’s wages are paid.
• Regular hourly pay rate.
• Total daily or weekly straight-time earnings.
• Total overtime earnings for the workweek.
• All additions to or deductions from the employee’s wages.
• Total wages paid each pay period.
• Date of payment and the pay period covered by the payment.

Vacation leave. FLSA does not require payment for time not worked, such as vacations, sick leave, or federal or other holidays. These benefits are matters of agreement between an employer and an employee (or the employee’s representative).