"Hours Worked" Under the Fair Labor Standards Act
To determine whether or not overtime pay is in order, a department must first determine the number of hours worked. The following information applies only to non-exempt employees of NDSU. The Fair Labor Standards Act, as well as the case law interpreting the Act, is very complex. If you have any questions about how to compute hours worked in a specific instance at NDSU, please consult with the Office of Human Resources and Payroll.
Employees Suffered or Permitted to Work
Work not requested but suffered or permitted is work time. The reason is immaterial. If the employer knows or has reason to believe that an employee is continuing to work, the time is working time. The fact that NDSU has a policy stating "Overtime hours must be authorized by the employee's department head," does not mean the University can avoid paying overtime if the work was not authorized. An employee who works unauthorized overtime must still be paid, but they may also be subject to disciplinary action.
The rule is also applicable to work performed away from the premises or the job site, or even at home. If the employer knows or has reason to believe that the work is being performed, they must count the time as hours worked.
Employees required to remain on call on the employer's premises or so close thereto that they cannot use the time effectively for their own purposes are working while "on-call." Employees that are not required to remain on the employer's premises but are merely required to leave word at their home or with company officials where they may be reached, or wear a pager, are not working while "on-call."
Rest and Meal Periods
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. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time.
- Bona fide Meal Periods - Bona fide meal periods are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. 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 his machine is working while eating.
- Where no permission to leave premises - It is not necessary that an employee be permitted to leave the premises if he is otherwise completely freed from duties during the meal period.
Sleeping Time and Certain Other Activities
Under certain conditions, an employee is considered to be working even though some of his time is spent in sleeping or in certain other activities.
- General - Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than eight hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If sleeping period is more than eight hours, only eight hours will be credited. Where no expressed or implied agreement to the contrary is present, the eight hours of sleeping time and lunch periods constitute hours worked.
- Interruptions of Sleep - If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted. For enforcement purposes, the Department of Labor has adopted the rule that if the employee cannot get at least five hours of sleep during the scheduled period, the entire time is working time.
An employee who resides on the employer's premises on a permanent basis or for extended periods of time is not considered as working all the time he is on the premises. Ordinarily, he may engage in normal private pursuits and thus have enough time for eating, sleeping, entertaining, and other periods of complete freedom from all duties when he may leave the premises for purposes of his own. It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all of the pertinent facts will be accepted. This rule would apply, for example, to the pumper of a stripper well who resides on the premises of his employer and also to a telephone operator who has the switchboard in her home.
Lectures, Meetings and Training Programs
Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:
- Attendance is outside of the employee's regular working hours;
- Attendance is in fact 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.
Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.
The training is directly related to the employee's job if it designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee's job even though the course incidentally improves his skill in doing his regular work.
Of course, if an employee on his own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job.
An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not work time.
There may be instances when travel from home to work is overtime. The Department of Labor is taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time. At NDSU, this decision is left up to the employee's department head.
A problem arises when an employee who regularly works at a fixed location in one city is given a special one-day work assignment in another city and travel time may take place prior to or after the regular work day. Such travel cannot be regarded as ordinary home-to-work travel occasioned merely by the fact of employment. It was performed for the employer's benefit and at his special request to meet the needs of the particular and unusual assignment. It would thus qualify as an integral part of the "principal" activity which the employee was hired to perform on the workday in question; it is like travel involved in an emergency call, or like travel that is all in the day's work. Of course, the usual meal time would be deductible.
Time spent by an employee in travel as part of his principal activity all in a day's work, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel time after 8 p.m. is home-to-work travel and is not hours worked.
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 employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours, but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday, the travel time during these hours is work time on Saturday and Sunday as well as on the other days.
Regular meal period time is not counted. As an enforcement policy, the Department of labor 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.
If an employee is offered public transportation but requests permission to drive his car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during working hours if the employee had used the public conveyance.
Any work which an employee is required to perform while traveling must, of course, be counted as hours worked. An employee who drives a truck, bus, automobile, boat or airplane, or an employee who is required to ride therein as an assistant or helper, is working while riding, except during bona fide meal periods or when he is permitted to sleep in adequate facilities furnished by the employer.