The federal Fair Labor Standards Act (FLSA) requires that a minimum wage be paid for all hours an employee is “suffered or permitted” to work and that an overtime wage be paid for all hours “worked” over 40 in a week. The FLSA does not specifically define “hours worked” or place a limit on the number of hours an employee may work; it requires only that overtime be paid for any hours worked over 40. Generally speaking, work time includes all time that employees spend engaged in the principal activities that they are employed to perform. Hours worked also includes waiting time, travel time, other than time spent commuting to and from the employee’s regular place of work; breaks or meal periods that are less than 20 minutes long; and time the employee is required to spend in training, at seminars, or in meetings. Hours worked for purposes of the FLSA do not include waiting time, time spent on call, or time when an employee is required to carry a pager or cell phone, provided the employee is otherwise free to effectively use the time for his or her own personal purposes. The FLSA does not obligate employers to pay employees for holidays, vacation, or sick days.

Check state law requirements. Many states have laws on hours of work that are more strict than federal requirements. Employers must follow the law that is most favorable to the employee.

The needs of businesses, especially in the retail, food services, and hospitality industries, change from week to week. Therefore, it has benefited businesses to be able to schedule shifts and change those schedules without providing much notice to employees. Companies want their workers to be flexible and available when they're needed. But that lack of notice is very difficult for workers and doesn't allow them to schedule their lives before or after work or maintain any type of consistency. In some cases, employees are simply on call and aren't even guaranteed work. Therefore, the incomes of these employees can fluctuate drastically, depending on whether they're called into work or not or whether their shifts are shortened or lengthened.

The first predictive scheduling ordinance was passed in San Francisco in 2014, and since then, other localities have taken notice. Seattle enacted a similar secure scheduling ordinance in July 2017. More localities have followed suit. Oregon passed the first statewide predictive scheduling law. Areas across the country, as well as the federal government, are considering the issues and determining whether predictive scheduling laws should be implemented on a larger scale. Predictive scheduling laws generally require a minimum amount of notice to be provided for an employee's scheduled shift or if changes are made to an employee's scheduled shift. Predictability pay may be required if shift reductions or changes are made after the initial notice of the shift is provided or if on-call employees aren't ultimately called in to work.

In the end, predictive scheduling makes life much easier for employees by allowing them to maintain a steady flow of income, schedule transportation to and from the workplace without continual last-minute changes, allow time for a second job if additional income is needed, organize child care, and even commit to attending educational classes during off hours to further their education.

The general rule is that work time begins when the employee begins doing activities on the employer's behalf and ends when those activities conclude. For example, normal commuting from home to work is ordinarily not considered work time, whereas time spent walking from the time clock to the workstation is generally compensable.

Changing into uniforms. The most basic concept of donning and doffing itself is simple. Employees arrive at work, and before beginning their duties for the day, some must change into different clothes. For some, this may be as simple as changing shoes; putting on a hat, name tag, and apron; or otherwise adding accessories to a mandatory uniform. For others, this may involve special protective masks, shields, or even full-body suits. However, one simple question turns the basic concept of “changing clothes” into a difficult and confusing quandary: At what point must you begin paying your employees—before they change clothes, or after? In fact, even the term “changing clothes” has a very specific meaning under the FLSA and has been subject to much interpretation by the courts and the U.S. Department of Labor (DOL). There have been many legal battles about whether employees should be compensated for the time it takes to change into the employer's required uniform. There have been many legal battles about whether employees should be compensated for the time it takes to change into the employer's required uniform. Generally speaking, time spent changing into a uniform on the employer's premises is considered work time, while time spent changing at home is not. Taken one step further, employees with elaborate uniforms/costumes (such as a Disney^® character or a Las Vegas showperson) should generally be paid for the time spent changing because it is for the employer's benefit, whereas employees with simple uniforms (e.g., a mechanic's overalls) would not be compensated. The U.S. Supreme Court has ruled unanimously that employers must compensate workers for the time they spend walking to and from the production floor after donning and before doffing required safety gear. The Court also said the time spent waiting to doff the required safety gear is compensable under the FLSA (IBP, Inc. v. Alvarez, 126 S.Ct. 514 (11/8/05)). Section 203(o) of the FLSA allows employers to exclude “any time spent in changing clothes or washing at the beginning or end of each workday,” but only when the time is excluded “by the express terms of or by custom or practice under a bona fide collective bargaining agreement.” In other words, the provision makes donning and doffing time a subject of bargaining, rather than a guaranteed statutory right. Specifically, the time spent donning and doffing employer-mandated protective clothing and equipment constitutes compensable work time under the FLSA if the activities are principal to the job and/or “integral and indispensable” to the employee’s performance of his or her job duties. This all seems relatively straightforward. Employees do not have to be paid when they change “clothes,” but they do have to be paid when they change into “protective gear.”

On January 27, 2014, the U.S. Supreme Court held that, pursuant to the terms of a collective bargaining agreement (CBA), the time that employees spend putting on and taking off their mandatory protective gear is not compensable under the FLSA (Sandifer v. U.S. Steel, Corp., No. 12-417). The FLSA states that hours worked do not include any time spent in changing clothes at the beginning or end of each workday, which was excluded from working time under a bona fide CBA. Steelworkers from the U.S. Steel plant in Gary, Indiana, sought payment in Court for the time they had spent each day donning and doffing their protective gear. U.S. Steel argued, in contrast, that the CBA specified that the donning and doffing was not compensable.

The U.S. Supreme Court held that “The time [workers] spend donning and doffing their protective gear is not compensable.” The Court emphasized that the term “clothes” should be “interpreted as taking [its] ordinary, contemporary, common meaning.” The Court further stated that “it is evident that the donning and doffing in this case qualifies as ‘changing clothes.’ Of the 12 items at issue, only 3—safety glasses, earplugs, and a respirator—do not fit within the elaborated interpretation of ‘clothes.’” The Supreme Court guided other courts to ask “whether the period at issue can, on the whole, be fairly characterized as ‘time spent in changing clothes or washing.’ If an employee devotes the vast majority of that time to putting on and off equipment or other non-clothes items,... even if some clothes items were also donned and doffed. But if the vast majority of the time is spent in donning and doffing “clothes” as defined here, the entire period qualifies, and the time spent putting on and off other items need not be subtracted.”

This ruling has cleared some uncertainty for unionized employers. Undeniably, the decision makes it difficult for unionized employees to recover under the FLSA for time spent donning and doffing protective gear if the terms of a CBA specifically exclude compensation for such time, or if the parties’ custom or practice also excludes compensation for such time.

Washing up. Time spent washing up on the employer’s premises is compensable if it is compelled by the necessities of the employer’s business. It should be noted, however, that for enforcement purposes, the Division of Labor Standards Enforcement (DLSE) utilizes a de minimis test concerning certain activities of employees.

Compensation for coming in a few minutes early or staying a few minutes late. Is this compensable time? The general rule is that employees who voluntarily come in before their regular starting time or stay after their regular stopping time must generally be paid only for the periods in which they are “on the clock” and working. For example, the Supreme Court has ruled that compensable work time does not include the time employees spend waiting to don the first piece of gear that marks the beginning of the workday (IBP, Inc. v. Alvarez, 126 S.Ct. 514 (11/8/05)). To avoid litigation, employers should make certain that their employee handbooks clearly state that the company pays only for the actual time spent working. But, employers should use extreme caution in altering official time records. The better practice is to create accurate time records by requiring employees to wait until their shift begins before clocking in. On the other hand, if employees are required to report to work at a particular time, they must be paid from the moment they report even if they perform no work while waiting. This is because from the moment they report for duty, their workday has begun, and they are being engaged to wait.

Whether waiting time is compensable depends on the particular factual circumstances. If the time at issue is controlled or required by the employer for the employer's benefit, it is likely compensable. But each situation must be assessed individually. Limitations on movement and locality are critical. Special provisions define rules for on- and off-duty periods as well as layover time during split shifts. Generally, the FLSA requires compensation for all time during which employees are required to wait while on duty or performing their principal activity. The determination on whether waiting time is compensable involves scrutiny and construction of the agreements between particular parties, appraisal of their practical construction of the working agreement by conduct, consideration of the nature of the service, and its relation to the waiting time, and all of the circumstances. Generally, if the waiting time belongs to and is controlled by the employer, the employee is engaged to wait, and the waiting time is an integral part of the job--and compensable. On the other hand, if the employee may use waiting time effectively for his or her own purposes, the employee is waiting to be engaged, and the time is not compensable. DOL regulations provide some guidance for employers in determining whether an employee is on duty or off duty.

On duty. All time spent by employees in waiting or in periods of inactivity while on duty must be counted as hours worked. This is particularly true when waiting periods are of such short duration that the employees cannot use them for their own benefit. The time may be hours worked even though the employee is allowed to leave the premises or the jobsite during periods of inactivity when such periods are unpredictable and of short duration. In such a case, because the employee is unable to use the time effectively for his or her own purpose, it belongs to and is controlled by the employer. In all these cases, waiting is an integral part of the job. If waiting time between work activities on the same day is long enough for the employee to spend the time for his or her own purpose, it may be held noncompensable.

Off duty. An employee is off duty and does not need to be paid when the employee is completely relieved of obligations to the employer, the time off is long enough in duration to allow the employee to use the time effectively for personal reasons, and the employee is instructed in advance that he or she can leave the worksite and will not have to return until a specific time. The regulations state that the employee must be specifically told that he or she is off duty during these times.

Split shifts and layover time. According to the DOL, if an employee has time off in the middle of a workday that is long enough to effectively use as he or she wishes, and the employee understands that he or she does not have to return to work until a definite specified time, the employee would not be considered to be working during the time-off period.

Examples of compensable waiting time. The time an employee spends waiting for a meeting to begin, the time a factory worker spends talking with coworkers while waiting for a machine to be fixed, the time a repair person spends waiting for the customer to get the premises ready must generally be counted as work time.

Example of noncompensable waiting time. If employees are completely relieved of duty for a period of time that is long enough to enable them to use the time effectively for their own purposes, such time need not be counted as hours worked. In such situations, the employees must be told in advance that they may leave the job and that they will not have to commence work until a specified hour. So if a needed machine breaks and cannot be fixed for 4 hours, the employee does not have to be compensated for the time spent waiting if the employer allows the employee to leave and return at a later time.

The U.S. Supreme Court unanimously decided in Integrity Staffing Solutions, Inc. v. Busk, No. 13–433 (2014)that employers do not need to pay employees for time employees spend in postshift security screenings under the FLSA. In this case, employees staffed by Integrity Staffing Solutions who package products for Amazon.com were required to pass through a security screening before leaving work each day. The postshift screening process took almost a half hour after each workday. The employees filed a class action lawsuit claiming that they should be paid for this time.

The Supreme Court decided that the process of going through the security screening is not compensable under the FLSA. First, the Court reasoned that the security screenings were not a principal activity of the job because “Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.” Furthermore, the Court found that the security screenings were not “integral and indispensable to the principal activities” of the job and were, therefore, not compensable. The Court stated that an “activity is integral and indispensable to the principal activities that an employee is employed to perform—and thus compensable under the FLSA—if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” In this case, the screenings were not “integral and indispensable” to the job because even if Amazon.com had stopped the postshift screenings, the employees would have been able to fully carry out their job functions. Stopping the security screenings would not have altered the employees’ ability to complete their work.

The Court noted two more interesting points. First, whether a preliminary or postliminary activity is required by the employer is not determinative as to whether it is “integral and indispensable to the principal activities” of the job. In other words, it may be required and still not be “integral and indispensable.” Second, just because Amazon.com could have greatly reduced time employees spent in the screening process by increasing the number of screeners does not mean that the employees should be paid for the time spent during security screenings. “The fact that an employer could conceivably reduce the time spent by employees on any preliminary or postliminary activity does not change the nature of the activity or its relationship to the principal activities that an employee is employed to perform.”

On-call time is different from waiting time, as it usually means that the employee is not on the employer's premises. On-call time must be counted as hours worked when the employee is required to remain on call so that his or her time is so restricted that the employee cannot use it effectively for personal purposes. If, in the case of standby or on-call status, the restrictions placed on the time of the employee are such that the employee is unable effectively to engage in private pursuits, the time is subject to the control of the employer and constitutes hours worked. On-call time is different from waiting time, as it usually means that the employee is not on the employer's premises. On-call time must be counted as hours worked when the employee is required to remain on call so that his or her time is so restricted that the employee cannot use it effectively for personal purposes. As a general rule, if the employee is free to use the time as he or she pleases (that is, is not required to remain on company premises and merely is required to leave word where he or she can be reached), the time spent waiting while on call is not considered to be working time. Accordingly, there is no legal compunction to pay employees additional wages or an overtime premium by virtue of their being on call, waiting to be beeped or called to come into work.

Factors to consider include the terms of the employment agreement, if any; physical restrictions placed on an employee while on call; the maximum period allowed by the employer between the time the employee was called and the time he or she reports back to work (response time); the percentage of calls expected to be returned by the on-call employee; the frequency of actual calls during on-call periods; the actual uses of the on-call time by the employee; and the disciplinary action, if any, taken by the employer against employees who fail to answer calls. The underlying inquiry in most on-call pay disputes concerns the amount of freedom enjoyed by the employee while on call and whether this measure of freedom allows this on-call time to be effectively used for the employee's own purposes. Some minor restrictions on this freedom do not trigger compensation requirements. The more restrictive the on-call policy is, the more likely that a court will conclude the on-call time is compensable working time.

An important element in determining the compensability of on-call time is whether the employer and employee had a prior agreement (oral or written) governing the compensation, or lack thereof, of on-call time. Of course, the employer cannot legally disregard the legal requirements by such agreement. Thus, agreeing to compensate a nonexempt employee at less than the minimum wage or agreeing not to pay for working time, such as coffee breaks or pretrip safety inspections, would be an unenforceable contract. When an employer requires employees to remain in a fixed location while on call, the courts and the DOL are likely to consider this on-call time to be compensable. Another noteworthy factor is how quickly employees will be required not only to call in but also to report back at work. Obviously, the ability of an employee to use the on-call time for his or her personal benefit largely depends on the length of this response time. The significance of a short response time must be evaluated in the context of the actual opportunities this time affords employees on call. Geographic considerations may affect this analysis. The amount of time given to employees to report to the worksite should, therefore, take into account a reasonable amount of time to commute, given the geographic constraints. In a small, rural community where the employee may travel anywhere in the community and feel confident that he or she will be able to report immediately to the employer if required, short time restrictions may be less relevant. By contrast, when the response time required for those in metropolitan areas is too short realistically for an employee to venture far from the worksite, the time on call may be considered too restrictive and, therefore, compensable. Another relevant on-call policy provision is the share of calls that an employee is required to answer. The DOL and the courts generally have not required compensation when the on-call employees are allowed to ignore a certain percentage of all calls, thereby retaining a degree of flexibility in their schedules while on call. The DOL and the courts will also consider the frequency of actual calls to which on-call employees respond. Some courts have considered how employees who are on call are able to actually use the time. If the court is convinced that, in fact, the employees were able to use the on-call time for substantial personal projects and affairs, the court may rule this time to be noncompensable.

On-call payments and the regular rate of pay. It is important to remember that on-call payments will alter an employee's regular rate of pay. If the employer chooses to pay the employee for on-call time that would not otherwise be considered hours worked, that compensation, nevertheless, must be included in the employee's rate-of-pay calculation. Of course, all payments for time actually worked also must be included in the regular rate calculation. Employers that voluntarily made payments to employees, even when not required, as a courtesy for the inconvenience of being on call have found themselves subject to large liabilities for extra overtime premiums at a later date.

Compensation before or after being called. Once the employee arrives at work after being called into service, all working time must be compensated. If this pushes the hours worked for the nonexempt employee over 40 hours a week or any other permitted schedule, overtime must be paid. If the employer and employee agree to compensate the employee for time spent on call, such compensation is permissible. If the time is working time, the amount paid must equal at least the minimum wage. If the job duties during on-call time are different from those during the regular working hours, they can be compensated at different rates of pay.

Pagers, cell phones, and other mobile contact devices. Modern technology allows employers and employees to be in constant contact, and most companies use a variety of electronic devices to notify on-call employees to return to duty. However, simply carrying the device does not usually qualify as hours worked. If the employee is not free to effectively use the time for his or her own personal purposes, the time should be counted as hours worked.

Commuting to and from work is generally not counted as work time. However, if an employee is sent on a special 1-day assignment to another location, the time spent traveling to and from that location must be counted as work time. Other travel time during a normal workday must be counted as hours worked when it is part of the principal job activity or when travel is necessary from jobsite to jobsite.

Travel away from home that includes being away overnight is work time when it cuts across the employee's workday. The travel time is not only hours worked on regular workdays during normal work hours but also during the corresponding hours on nonworkdays. 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. Time spent for regular meal periods is not counted. Time spent in travel away from home outside of regular work hours as a passenger on an airplane, train, boat, bus, or automobile is not work time.

Example. If an employee who normally works 9 a.m. to 5 p.m. Monday through Friday is a passenger on a plane departing for San Francisco at 9 a.m. on Saturday, the time spent traveling is work time because it cuts across normal working hours. It does not matter that Saturday is not a normal workday. However, if the plane departed at 6 p.m., the travel time would not be counted as compensable work time because the employee would be traveling outside of normal working hours.

Hourly employees who drive a company vehicle home at the employer's direction or for the employer's benefit (e.g., so they can respond to calls) must be paid for the time it takes to drive home and to respond to customer calls. However, if the vehicle is taken home primarily for the employee's convenience, the travel time need not necessarily be counted as hours worked. Please see the national Travel Time section.

There are other times when employers must pay employees for time not spent working. For example:

Meal periods. There is no federal law requiring meal breaks in industries or offices. However, breaks of up to 20 minutes must be counted as work time, and those that last more than 20 minutes need not be counted as work time, provided the employee is relieved of duty. This is true even if the employee is not permitted to leave the premises.

Rest periods. Short rest breaks of 5 to 20 minutes are common in the workplace. Rest breaks are not required by federal law, but if they are offered, they must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may last for only a specific length of time, that any extension of the break is contrary to the employer's rules, and that any extension of the break will be punished.

Sleeping time. Under certain conditions, sleeping time is compensable work time. An employee who is required to be on duty for fewer than 24 hours is working, even though permitted to sleep or engage in other personal activities when not busy. In the case of employees on duty for 24 or more consecutive hours, the employee and employer may agree to exclude from hours worked meal periods and a scheduled sleeping period of 8 hours or less, provided adequate sleeping facilities are furnished and the employee can typically enjoy an uninterrupted night's sleep. If the sleep period is interrupted by a call to duty, the interruption time is considered hours worked, and if the employee cannot get at least 5 hours of sleep, the entire period must be counted as work time.

The DOL has released an opinion letter providing guidance on sleep time for group home employees. If a group home employee permanently resides on the premises, the employee does not need to be paid for sleep time, even though the employee is not free to leave the premises during that time, if:

Split shifts. If an employee is entirely free to use the time off between work periods, it need not be counted as work time.

Training programs, lectures, and meetings. If attendance at these functions is required, the time must be counted as work time. If employees attend an independent school, college, or trade school after hours on their own initiative, the time is not counted as hours worked, even if the courses are related to the job.

Holidays, vacations, and sick days. Holidays not worked, vacation days, and sick days are not counted as hours worked. Unless there is an agreement to the contrary, employers have no obligation to pay for such time.

Medical attention. The time an employee spends waiting for and receiving medical attention on the premises or at the direction of the employer during normal working hours on days when the employee is working must be counted as work time.

Report-in pay. Federal law doesn't require employers to pay employees who report to work but are unable to work because of some unusual condition at the workplace. However, many states and industries require report-in pay.

Suggestion systems. The time an employee spends outside of regular working hours in developing suggestions under a general suggestion system is not counted as work time. However, if an employee is permitted or assigned to work on suggestions during regular working hours, the time must be counted as work time.

Working from home. Employees who work at home must be paid only for the time that they are working. Other activities, such as eating, sleeping, and entertaining, are treated the same as for those who work in the office.

Extra pay for working during weekends is generally a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend work. However, covered, nonexempt employees must be paid at least 1¹/₂ times their regular rates of pay for the time worked over 40 hours in a workweek whether worked on regular workdays or on the weekend.

Extra pay for working night shifts is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for night work. However, the FLSA does require that covered, nonexempt workers be paid not less than 1¹/₂ times their regular rates of pay for the time worked over 40 hours in a workweek.

Training programs conducted during regular working hours constitute work time and must be compensated as such, according to the FLSA. After-hours training need not be compensated if:

A training program is considered directly related to the job if the training is designed to help the employee handle the present job more effectively (but voluntary attendance at school outside the workplace, after hours, is not work time, even if it is related to the employee's present job). Time spent in training for a new job or in the development of new skills is less likely to be classified as compensable work time.

Online training. If an exempt employee does online training at home, there is no problem, and an employer will pay the employee's usual weekly salary. If a nonexempt employee does online training at home, and if the training is mandatory or job related, which it often is if the employer is providing the training, employers will have to pay nonexempt employees for this time.

Employers may have to pay for the time taken by nonexempt employees to read and send e-mails after work hours. Under the de minimis rule, employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours if, as a practical administrative matter, such time cannot be precisely recorded. If employees are checking e-mails for 2 or 3 minutes, employers will likely not have to pay for this time. But if employees are spending 10 to 15 minutes after work hours, employers will have to pay employees for this work time. Many employers provide personal digital assistants (PDAs) only to exempt employees and limit after-hours e-mail checking to exempt employees. If a business needs to provide nonexempt employees with PDAs, have a company policy prohibiting after-hours use, monitor employee use of the PDAs, and discipline employees for violating the policy. Remember that even if employees violate a company policy by reading and writing e-mails after work hours, you may discipline the employees, but you still have to pay them for this time.

Federal law restricts the number of hours that minors (under the age of 18) may work.

Minors under the age of 16. Minors under the age of 16 may only work:

Exceptions. Attendants at professional sports events may work beyond the weekly time and hour restrictions but not during school hours. Other exceptions to the restrictions for 14- and 15-year-old workers may be made for students who are enrolled in a work experience or career exploration program during school hours.

Minors over the age of 16. There are no federal limits on working hours for 16- and 17-year-old workers. Many state laws do restrict working hours for workers in this age group, however, with stricter requirements applicable to employment on school days or evenings before school days.

Check state law. Most states regulate at least some part of child labor. State laws that are more restrictive than federal laws must be followed.

Employers are required to keep records of hours worked, wages paid, and other conditions of employment. The FLSA does not require that time clocks be used to record work time; handwritten logs are generally acceptable.

Rounding practices. In some industries, the practice is to round off employees' starting time and stopping time to the nearest 5, 10, or 15 minutes. Theoretically, this arrangement averages out so that the employees are fully compensated for all the time they actually work. This practice may be acceptable unless, over time, it can be shown that employees are not properly compensated for all the time they have actually worked.

Employers may disregard insubstantial or insignificant periods of time beyond the scheduled working hours if, as a practical administrative matter, such time cannot be precisely recorded. This rule applies only where industrial realities justify the practice and the periods of time involved are uncertain and amount to a few seconds or minutes. An employer may not fail to count any part, however small, of the employee's fixed or regular work time.

Many employers are following the lead of some of the major corporations that have adopted a corporate culture that emphasizes a work/life balance. These companies recognize the demands that modern life places on a family structure, whether headed by two wage earners or one. Flexible workdays and schedules, including telecommuting options, can play an important part in helping a parent meet family obligations such as attendance at school meetings and medical appointments.

Compensatory time allows public employers to offer their employees additional time off instead of paying overtime. The additional time off must be given at 1¹/₂ times the amount of time worked over 40 hours. For example, an employee working 42 hours in a week has earned 2 hours of overtime. Instead of compensating the employee for that 2 hours of overtime, the employee is allowed to take 3 hours of compensatory time at a later date (2 overtime hours times 1.5 equals 3 hours of compensatory time).

Legislation has been introduced in Congress in the last few years, and again this year, that would extend compensatory time to the private sector. The measure seems to gain additional support each year as it would be a way for employers to theoretically cut costs by avoiding overtime pay.

The Federal Motor Carrier Safety Administration (FMCSA) limits the number of hours a driver may operate a commercial motor vehicle during each workday, the length of the workday within which driving may occur, the minimum off-duty period before starting the next workday, and the cumulative number of on-duty hours during the workweek after which a commercial motor vehicle may not be driven. The FMCSA has issued an interim rule that allows interstate truckers to drive 11 hours per day within a 14-hour, nonextendable window after having 10 consecutive hours off duty. Drivers may restart their calculations of the weekly on-duty time limits after they have had at least 34 consecutive hours off duty (also called the 34-hour restart). The 34-hour restart provision gives truckers the opportunity to drive 77 hours in a 7-day period or 88 hours in an 8-day period.

The healthcare industry includes hospitals, residential care establishments, skilled nursing facilities, nursing facilities, assisted-living facilities, and intermediate care facilities for mental retardation and the developmentally disabled. The following examples provide guidance regarding common FLSA violations found by the DOL during investigations relating to the failure to pay healthcare employees for all hours worked.

Example 1. An intermediate care facility docks employees by a full quarter hour (15 minutes) when they start work more than 7 minutes after the start of their scheduled shift. Does this practice comply with the FLSA requirements? Yes, as long as the employees’ time is rounded up a full quarter hour when the employee starts working from 8 to 14 minutes before his or her shift or if the employee works from 8 to 14 minutes beyond the scheduled end of the shift.

Example 2. An employee’s schedule is 7 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break. The employee receives overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional overtime compensation for the 1.25 hours over 40.

Example 3. An employer only records and pays for time if employees work in full 15-minute increments. An employee paid $10 per hour is scheduled to work 8 hours a day Monday through Friday, for a total of 40 hours a week. The employee always clocks out 12 minutes after the end of her shift. The employee is paid $400 per week. Does this comply with the FLSA? No. The employer has violated the overtime requirements. The employee worked an hour each week (12 minutes times 5) that was not compensated. The employer has not violated the minimum wage requirement because the employee was paid $9.75 per hour ($400 divided by 41 hours). However, the employer owes the employee for 1 hour of overtime each week.

Example 4. A licensed practical nurse (LPN) works at an assisted-living facility that has a “sister facility” 20 miles away. There have been times that the LPN has been asked to fill in for someone at the other facility after she completes her shift at her normal worksite. It takes her 30 minutes to drive to the other facility. The travel time is not recorded on her time sheet. Is this a violation of the FLSA? Yes. The travel time must be considered part of the hours worked.

Example 5. A residential care facility offers specialized training on caring for Alzheimer's disease residents. There are two workshops: one in the evening for the day shift and one during the day for the evening shift. All employees are required to attend. Is this compensable time? Yes, because the training is not voluntary and is related to the employees’ jobs.

Example 6. The administrator of a nursing home says specialized patient care training is voluntary, but the nursing supervisors expect all employees on their units to attend and schedule times for each employee to go. Is the time considered hours worked? Yes. The time would be considered hours worked. When the nursing supervisors expect all unit employees to attend and schedule their times, it is not truly voluntary.

Example 7. The dishwasher decides to go to the Alzheimer’s training session after his shift. Must the administrator pay for the dishwasher’s time spent at the training session? No, because all four criteria above are met. It is not considered hours worked.

Example 8. The administrator provides a Tai Chi course to residents and allows employees to attend during their off-duty hours. Do employees have to be paid for the time they attend this course? No. The employees do not have to be paid because attendance is voluntary and the other three criteria are met.

Example 9. A skilled nursing facility automatically deducts one-half hour for meal breaks each shift. Upon hiring, the employer notifies employees of the policy and of their responsibility to take a meal break. Does this practice comply with the FLSA? Yes, but the employer is still responsible for ensuring that the employees take the 30-minute meal break without interruption.

Example 10. An hourly paid registered nurse works at a nursing home that allows a 30-minute meal break. Residents frequently interrupt her meal break with requests for assistance. Must she be paid for these frequently interrupted meal breaks? Yes. If employees’ meals are interrupted to the extent that meal period is predominately for the benefit of the employer, the employees should be paid for the full 30 minutes.

Example 11. Many third-shift nursing home employees who smoke prefer to take three 10-minute unpaid smoke breaks instead of their 30-minute unpaid meal break. Is it okay for them to substitute the smoke breaks for their meal break? No. The employee must be compensated for the smoke breaks.

Example 12. An assisted-living facility has four LPN wellness coordinators who are paid hourly. They rotate being on call each week. They are required to carry a cell phone and be within 45 minutes of the facility when they are on call. They are not paid for all time spent carrying the cell phone but are paid for time spent responding to calls and time when they have returned to work at the assisted living facility. Does this comply with the FLSA? Yes.

Example 13. A residential care facility pays its nurses an hourly rate. Sometimes the residential care facility is short staffed and the nurses stay beyond their scheduled shift to work on patients’ charts. This results in the nurses working overtime. The director of nursing knows additional time is being worked but believes no overtime is due because the nurses did not obtain prior authorization to work the additional hours as required by company policy. Is this correct? No. The nurses must be paid time and one-half for all FLSA overtime hours worked.

Example 14. An hourly paid office clerk is working on a skilled nursing home’s quarterly budget reports. Rather than stay late in the office, she takes work home and finishes the work in the evening. She does not record the hours she works at home. The office manager knows the clerk is working at home, but since she does not ask for pay, assumes she is doing it “on her own.” Should the clerk’s time working at home be counted? Yes. The clerk was “suffered and permitted” to work, so her time must be considered hours worked even though she worked at home and the time was unscheduled.

Shift operation is a system that allows employers to schedule work around the clock by using the right work organization, supervisory coverage, and pay policies. Shift schedules work best where employees understand and buy in to the operation. While shift operations always involve having employees working outside the normal workday, devising the best shift schedule requires looking beyond the obvious issues of shift duration and time-off scheduling. An economic analysis of the business to determine the best way to deploy resources is the first step when starting or reorganizing shift operations. Management should define its business needs for instituting or reorganizing shift operations. These may include decreasing costs, increasing production, increasing safety, and improving the deployment of skilled personnel across shifts. Various schedule models can then be devised. Employees can give valuable input on features such as start times, shift lengths, and day-off patterns. In addition to better compensation, shiftworkers desire better days off, better alertness and health, and more predictability in the work schedule. The ideal goal is a schedule that best blends business needs and employee desires.

Shift differentials. Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend or night work. However, the FLSA does require that covered, nonexempt workers be paid not less than time and one-half the employee's regular rate for time worked over 40 hours in a workweek. To make up for the significant interference with their personal lives, shiftworkers are usually rewarded with premium pay (known as shift differentials), reduced hours, or both. Any established premium is considered part of the regular wage and must be included in computing overtime under the FLSA. A 10 percent premium to employees who work second or third shift is not unusual. Figuring shift pay in percentages can be a nuisance, so many companies pay a flat cents-per-hour wage premium.

Scheduling. The simplest shift schedule divides the day into three relatively equal parts. First shift might run from 7 a.m. to 4 p.m.; second shift might run from 3 or 4 p.m. to 11 p.m. or midnight; third shift usually begins at 11 p.m. or midnight and ends at 7 a.m. or later. It is important in any system that there be a clear definition of when the workday and workweek begin and end to prevent confusion as to when premium rates apply. Employers should analyze their workload to determine the number and types of workers needed on a particular shift. An unbalanced schedule may work because more technical, maintenance, and product changes take place during the day shift. Other scheduling issues to consider include assigning work in teams that would require consistent scheduling among many employees, using temporary or part-time workers to fill in gaps when work levels increase and, in contrast, ensuring that shifts aren't too sparse.

Variations. There are numerous variations on the three-shift system. One common system has shiftworkers working 12 hours per day for 3 or 4 days in a row, then having 3 or 4 days off. Businesses that operate on a continuous basis may divide the total 168 hours in a week between four shifts that work an average of 42 hours per week plus an additional multipurpose crew to cover gaps and special tasks.

Customer service issues. Analysis of workload is crucial in customer service industries, as shiftworkers with telephone responsibilities interact directly with customers in different time zones and possibly 24 hours a day/7 days a week for those with Internet responsibilities. Therefore, the number of employees needed during each hour of the day and each week of the year should be determined. The average workload, plus possible high and low variations, also should be calculated by taking into account holidays, weekends, and vacations. The goal should be to minimize both idle time and overtime.

Time off. A schedule that includes time off, such as extended vacations or long “weekends,” can make shift work an attractive alternative to regular day work. Shift differentials are typically included in holiday and vacation (or other leave) pay.

Health and safety. Shiftworkers not only work at unusual hours but also work out of sync with the human body's natural waking and sleeping rhythms. Because of this disruption, shiftworkers have been found to be less productive, be more likely to suffer from a variety of health problems--including ulcers and gastrointestinal disorders, have higher turnover and absenteeism rates, and have more accidents while working and commuting. There are few tools for finding employees who are best suited for shiftwork. While information is now available about how shiftwork affects individuals’ health, care must be taken in applying this information to avoid violating the American with Disabilities Act (ADA). Employers may not ask disability-related questions or conduct medical exams before making a job offer. However, after an offer is made, employees may be tested as long as all employees in a particular category are tested. According to the Equal Employment Opportunity Commission, an employee may be rejected from a particular job, including shiftwork, for disability- or health-related safety reasons, if he or she “poses a significant risk of substantial harm to him/herself or others and the risk cannot be reduced below the direct threat level through reasonable accommodation.” In other words, if an employer cannot reduce the risk through an accommodation, the applicant may be rejected. Individuals supervising shiftworkers should be aware of medical conditions that are likely to be aggravated by shiftwork. While it might be illegal to make hiring and other employment-related decisions based on these conditions, relevant health information can be used for working out the best schedules for particular workers to improve the overall health and safety of the workforce. Medical conditions that have been identified to be worsened by working night shifts include seizure disorders, chronic depression, insulin-related diabetes, severe gastrointestinal disease, and chronic heart disease. Other problem conditions include non-insulin-dependent diabetes, severe thyroid problems, asthma, chronic bronchitis, chronic sleep disorders, cardiac risk factors, depression, midlevel digestive disorders, and alcoholism or drug addiction.

Improving communication. Fixed schedules limit contact between employees who only work nights and managers/supervisors and technical/support staff who only work daytime hours. If communication between shifts is a problem, your organization should establish a policy that all managers must work 1 or 2 nights per week. On those nights, their hours need not mirror the night shift. Rather, they can come in 4 hours earlier or work 4 hours later--just long enough for them to see how things are going and to deliver news of changes in policies and practices. Don't rely solely on the nightshift supervisor to disseminate information to night workers. Instead, put up a bulletin board in a centralized location that serves as the plant's daily "State of the Union" address. To avoid information overload, post only important items--key production and performance numbers, major policy changes, important company news, etc. Save less significant news--such as minor policy changes and social event announcements--for a separate site. Meetings with workers should be held before work, even though it means managers have to come in at night. After the night shift, workers are likely to be so exhausted they will miss half of what the manager is telling them. Studies have shown that employers with shift operations can operate more profitably by providing assistance to their shift employees. Shiftworkers are apt to have problems sleeping, difficulty finding child care at nontraditional times, less training and supervisory support, and limited access to support departments, including the Human Resources department. Employers that address these issues can experience lower absenteeism rates, better safety records, and reduced errors at work.

Skill imbalance. Seniority-based schedules can leave young, inexperienced workers on the night shift, which may lead to safety and productivity problems. The following approaches may balance the team. With fixed shifts, the importance of front-end training increases. Employers need to make sure new hires receive the training they need to do their jobs, as well as information about coping with the physical and social challenges of working evening and night shifts. Some companies have "pay-for-knowledge" programs in which salaries are based in part on how many jobs an individual can perform. This is a highly effective way to encourage employees to broaden their skills. If skill imbalance is still a problem, an employer will not be able to use a straight seniority-based system in which experienced employees work their way onto the day shift. One alternative approach is to designate certain key positions as "non-seniority-based." With these jobs, make it part of the institutional policy that working at night is part of the job and that transferring to days is not an option. With such a policy, people won't apply for this job if their goal is to eventually switch to days. Another possibility is to require day shiftworkers to spend time on the night shift. Depending on the situation, talented, experienced workers might spend a couple of days a month or several weeks a year training less experienced nightshift employees. Just make sure to map out the dates for these sessions well in advance so veteran employees can plan accordingly. A related option is to actually rotate a job slot through the different shifts. Such a system might put an experienced worker on the night shift for a month or 2 each year.

For additional information, employers may contact: