When nonexempt employees are doing their primary job duties, it’s easy to tell that they are working. Their working time should be compensated. But, when nonexempt employees are not doing their main job duties, it can be more difficult to tell if they are working and if they should be compensated.
The Fair Labor Standards Act (FLSA) hours worked rules can help you determine when your employees are working and, therefore, when you should pay for hours worked.
FLSA hours worked definition
The FLSA sets labor laws regarding hours worked. Hours worked are compensable time, meaning you have to pay the employee for worked hours. You must be able to distinguish between working time and non-working time.
Calculating hours worked is extremely important when it comes to overtime laws. When a nonexempt employee works more than 40 hours in a workweek, you must pay the employee 1.5 times their regular rate of pay for all overtime hours (time and a half pay).
If you aren’t able to clearly define when an employee is working, you will have problems determining how much to pay the employee, for both regular and overtime wages.
The FLSA gives guidance on several work activities that can be difficult to determine if they count toward hours worked.
Waiting time
If an employee is waiting to work, the waiting time may or may not count as hours worked, depending on the circumstances.
When an employee is engaged to wait, the waiting time counts as working time. Engaged to wait means you require the employee to be at work and wait until there is something to do. For example, you hire a receptionist to answer calls and greet clients. Between calls and clients, the receptionist reads a book. You must pay the employee for the time they are reading.
When an employee is waiting to be engaged, the waiting time doesn’t count as working time. Waiting to be engaged means you do not require the employee to be at work while they are waiting for work to do. For example, if an employee voluntarily shows up a half hour before their shift and waits at a table until their shift starts, you don’t have to compensate the employee for the waiting time.
On-call time
If you require an employee to be on call, their on-call time might be hours worked depending on the location and freedom of the on-call time.
Require the employee to remain at the business during the on-call time? If so, the time should count as hours worked, and you must pay the employee FLSA on-call pay. If you require the employee to remain within close proximity (e.g., 15 miles, 20-minute drive), the on-call time may count as hours worked.
You must also consider whether or not the employee can effectively use the on-call time for their own purposes. If the employee can freely do activities of their choosing, such as going to sporting events, seeing movies, and spending time with their children, the on-call time might not count as hours worked. But if the employee can only do limited tasks and receives many interruptions, the time may count as on-call working time.
Rest and meal breaks
Federal laws do not require employee breaks, but you must follow FLSA rules if you allow them.
You should count short rest breaks of 20 minutes or less as hours worked. If you tell an employee that a rest break should only last a certain amount of time and the employee takes a longer break, you do not have to count the excess time as hours worked.
Meal periods, typically 30 minutes or more, do not count as hours worked. However, if the employee is not completely relieved from their duties during the meal break, the meal counts as hours worked.
Sleeping time
If an employee on duty for less than 24 hours is permitted to sleep, the sleeping time counts as working time.
If an employee is on duty for 24 hours or more, you and the employee may agree to exclude a regularly scheduled sleeping period of eight hours or less from hours worked. However, you can only deduct sleep time if the employee gets five hours of total sleep. You must provide sleeping facilities and the employee must usually have uninterrupted sleep.
Lectures, meetings, and training programs
Lectures, meeting, and training programs do not count as time worked if all four criteria are met:
- They’re outside normal work hours
- Participation is voluntary
- It is not directly job related
- Other work isn’t performed at the same time
So, if you had a mandatory training outside of normal work hours, it might count as FLSA training time.
Travel time
Is travel time compensable? Depending on the type of travel, paying employees for travel time may be necessary.
Home-to-work travel
If an employee travels to work in their own vehicle before the beginning of the regular workday and returns at the end of the workday, this is ordinary travel. It doesn’t count as work time and you don’t owe travel time pay.
But if you require the employee to do work-related activities while commuting between home and work, the time between the stop and the work site may be hours worked. For example, you might require an employee to pick up equipment from a supplier or main office on the way to a work site.
Home-to-work travel on a one-day assignment
If you send an employee on a special one-day assignment to a location other than their fixed work location, the time traveling to and from the other location is working time. The employee must leave and return home on the same day in this situation. You can deduct the time the employee would normally spend commuting to the regular work site.
Travel that’s all in a day’s work
If an employee travels as part of their principal job activities, the travel time counts as hours worked. For example, if the employee normally travels from job site to job site during the workday, the time spent traveling is working time.
Travel away from home requiring an overnight stay
When an employee must stay away from home overnight because of travel, it is travel away from home. Travel away from home is hours worked when it takes place during the employee’s regularly scheduled hours of work.
Any travel time that occurs outside the regularly scheduled work hours may not be hours worked. If the employee is driving while traveling outside of regular work hours, the travel time counts as hours worked. However, if the employee is a passenger (e.g., on an airplane, train, bus, or boat), the travel time outside of regular work hours does not count as hours worked unless the employee is working while traveling.
Working while traveling
If you require an employee to perform any work while traveling, count the travel as hours worked. For example, you might require an employee to drive, assist the driver, do mandatory reading, or act as a tour guide.
For more information
To get more information about what counts as hours worked, consult the U.S. Department of Labor. The FLSA Hours Worked Advisor can walk you through the process of determining hours worked. The Advisor has more scenarios and special situations than contained in this article.
Also, be sure to check your state laws, as your state government can set more restrictive rules.
Make sure you pay employees for all their hours worked. Use Patriot’s online payroll software to accurately calculate wages and taxes. You can also add the time and attendance software so employees can track their own work time, making payroll even more simple for you. Try it for free!
This article has been updated from its original publication date of March 28, 2018.
This is not intended as legal advice; for more information, please click here.
