Check Your Understanding About How to Pay On Duty, On Call and Live-In Employees
By Kevin M. Mosher • Aug 14, 2014
Sometimes business requires certain employees to wait for work, to remain on the premises, or to sleep overnight on the premises. How are those employees to be compensated under the Fair Labor Standards Act (FLSA)? While these situations are fact specific, here are some guidelines to help make sure you’re on the right track in complying with the law.
DOWN TIME FOR EMPLOYEES ON DUTY.
When an employee cannot effectively use down time for his/her own purpose and that time is controlled by the employer, the employee is considered to be working. Periods of down time are usually short in duration and unpredictable. The employee should be paid for that time.
If an employee is required to stay on the employer’s premises or so close to the premises that he/she cannot use the time effectively for personal reasons, the employee is considered working while on call and should be paid. If an on-call employee can stay at home or provide a phone number where he/she can be reached, generally the employee is not considered to be working and would not have to be paid.
EMPLOYEES REQUIRED TO BE ON DUTY EVEN THOUGH THEY ARE ALLOWED TO SLEEP OR ENGAGE IN PERSONAL ACTIVITIES WHEN NOT BUSY.
This is nuanced. An employee who is on duty for less than 24 hours is considered to be working the entire time, even if he/she can sleep or engage in other personal activities when not busy. An employee who is required to be on duty for 24 hours or more can have bona fide meal periods and bona fide regularly scheduled sleeping periods of up to 8 hours excluded from pay. Adequate sleeping facilities must be furnished in this circumstance. An interruption to sleep counts as hours worked. If the employee cannot get at least 5 hours of uninterrupted sleep, the entire period must be counted as working.
EMPLOYEES RESIDING ON EMPLOYER’S PREMISES OR WORKING AT HOME.
If an employee resides on the employer’s premises on a permanent basis or for extended periods of time, he/she is not considered to be working the entire time they are on the premises. Generally such situations allow the employee to have personal time to eat, sleep, or be free from all duties, including being able to leave the premises for personal reasons. These situations are difficult for tracking hours, so employers should make sure there is a reasonable, thorough employment agreement or job description in place to head off any wage claims.
A good rule of thumb when you’re wondering whether an employee’s time should be compensated is to ask whether the employee has been completely relieved of his/her duty and if the employee can effectively use that time for personal reasons. If so, the employee probably does not need to be paid. If not, the employee probably should be paid. Each situation should be a fact-specific analysis, and perhaps involve a consultation with legal counsel.
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