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What Are "Hours Worked"? 

Employees are supposed to be paid for all hours they actually work for an employer. Employers often fail to count ALL hours an employee works within a seven day period. This results in unpaid wages and possibly unpaid overtime.

The following categories discuss hours employers may need to count (and in some cases must count) as working hours:


• Work Time
• Volunteer Time
• Meal Time
• Off the Clock Work
• Travel Time
• Break Time
• On-Call Time
• Paid Time Off
• Sleep Time
• Training Time

Work Time

All time spent by an employee performing activities which are job-related is potentially "work time." This includes the employee's regular "on the clock" work time, plus "off the clock" time spent performing job-related activities (which benefit the employer). If an employer knows the employee is doing work (or could have found out by looking), and lets the employee do it, the employer will be responsible for paying for the work time.

With only a few exceptions, all time an employee is required to be at the premises of the employer is work time. All regular shift time is work time. This includes most "breaks" (if there are breaks), and "nonproductive" time (for example, time spent by a call center employee waiting for the phone to ring). In addition, all time spent by an employee performing work-related activities that the employer permits is work time, whether on premises or not and whether "required" or not. Work done "at home" or at a place other than the normal work site is work, and the time must be counted. "Voluntary" work is work, and the time must be counted. "Unauthorized" or "unapproved" work is work and must be counted (provided that the employer knows or should know it is being done and permits the employee to do it). The employer is charged with controlling the work of its employees. If an employer does not wish an employee to perform work, it must prohibit the employee from doing so if it does not wish to pay for that work. An employer may not accept the benefit(s) of work performed by its nonexempt employees without counting the time in computing the employee's pay.

While all actual work time must be counted, only actual work time must be counted. Therefore hours where an employee is not working do not count as work time, even if the employees is paid for them. For example, leave time (paid time off such as vacation, holiday, and sick time) and meal time are not considered as work time. In addition to leave time and meal periods, other potential "time not worked" may include some travel time, and sleep time.

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Volunteer Time

Individuals may volunteer to work for charitable or non-profit organizations without being considered as employees. However, employees may not "volunteer" to do similar work for their same employer without the time being counted as work time. For example, an ambulance driver for a private ambulance service cannot volunteer to pick up additional shifts on the weekend as a driver. Doing the same job or one very similar to the one the employee performs for the company will not be considered as volunteer time, but will be work time instead.

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Meal Time

While employers do not have to give employee lunch breaks, the breaks must be at least 30 minutes long before the employer can refuse to pay for the time. An employee who does not get a full 30-minute lunch break, free from any work requirements, will likely have a claim for unpaid wages. Thus, an employer that automatically deducts 30 minutes every day from an employee's pay for lunch may be violating the FLSA where the employee did not take lunch or took a lunch shorter than 30 minutes.

An employee who "works through lunch" is working and that time must be counted. An employee who "eats a sandwich at the desk," and who still performs some work (like answering the phone), is working through lunch. However, a meal period need not be counted as work time if the employee is merely expected to "remain available" during the meal period but is otherwise relieved of active work duties. So, for example, a meal period may be time not worked even if the employee is not permitted to leave the facility, or expected to remain in uniform.

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Off The Clock Work

Many FLSA lawsuits have involved employers failing to include time spent by employees performing work activities outside of their normal shifts. Some employees, for example, may "come early" and start working before the official start time of their shifts. Such time counts as work time and must be included in pay computations, provided only that the employer knew or should have known that the employee was beginning work early (and, of course, to the extent that the employee spent pre-shift time actually performing work activities). Pre-shift "roll calls" are work time as are pre-shift meetings like safety meetings. Time spent setting up equipment before the official start time of a shift is work time. Some employees may similarly "stay late" after shifts performing work; this time must be counted as work time, as well. Time spent by an employee cleaning equipment after the close of a shift is work time. Post-shift work time could also include time spent by an employee performing job-related activities "on the way home," as for example a secretary who drops off the day's mail at the post office or delivers some paperwork to a customer or supplier. Some employees take work home. That time may well be work time. Similarly, if an employee is contacted at home by telephone for work related reasons, the time spent is work time (and, of course, if an employee is "called back" to work, the time counts as work time).

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Travel Time

The general rule is that travel between work and home is not work time as long as the employee is not performing any work on the trip. However, some travel time must be counted as work time. The following standards apply to travel time:

Normal Home to Work Travel:
Travel directly from an employee's home to an employee's place of work is not work time when the employee is using his/her own vehicle. 29 C.F.R. € 785.35. When an employee uses a company vehicle to travel from home to work (or engages in activities incidental to the use of the vehicle such as filling the vehicle with gas), the travel time will not be work time if:
 
(a) the travel is within the normal commuting area for the employer's business and
(b) there is an agreement between the employer and the employee excluding such duties from compensable work. 29 U.S.C. € 254(a)(2).
 
Work During Travel:
An employee who rides in an employer's vehicle from a meeting place to a job site is not considered to be working while traveling. The same is true when returning from the last place of work in the day to an employee's home. However, such travel as a passenger will be work time if the employee has performed any work before traveling to the job site or performs any work after leaving the job site. Also, if the employee performs any work while traveling, such as reading a report, then the travel must be considered work time. Any work which an employee performs while traveling must be counted as hours worked. Thus, if an employee spent time drafting proposals while riding in an airplane, the employee must be compensated for that time. Also, if an employee is engaged to drive a vehicle, equipment, or personnel to a work site, the employee is likely working while driving.29 C.F.R. € 785.41.
 
Travel that is All in a Day's Work:
Travel from one workplace to another in the same day is work time. In some cases, a brief amount of work at an office or other reporting place will start the employee's work for the day and the subsequent travel will be work time. This rule applies to travel time spent as a passenger and as a driver. 29 C.F.R 785.38.
 
Special One-Day Assignment Out of City:
Travel for a one-day assignment to another city that does not involve an overnight stay must be counted as hours worked. The employee must be compensated for travel to another city which occurs before, during and after the employee's regular working hours. Bona fide meal periods and travel between the employee's home and the airport/train station need not be counted as hours worked. 29 C.F.R. € 785.37. However, if the event that necessitates the out-of-town trip is a normal, contemplated, and mandated incident of employment (annual training for example) then the travel time is not compensable work time. See Imada v. City of Hercules , 138 F.3d 1294 (9th Cir. 1998).
 
Overnight Assignment Out of City:
When an employee travels for work away from the home community and is gone at least one night, different compensation rules apply:
 
a. During Working Hours: Travel during an employee's regular working hours ? regardless of whether such travel occurs on a weekday or on the weekend ? must be counted as hours worked. However, the employee need not count bona fide meal periods as hours worked (unless business is discussed or performed during those meal periods). 29 C.F.R. € 785.39.
b. Outside of Working Hours: Travel outside of an employee's normal working hours ? regardless of whether such travel occurs on a weekday or on the weekend ? may be compensable, depending on the method of travel:
i. As a Passenger: If the employee travels as a passenger on a plane, train, boat, bus or automobile, the travel time will not be compensable. 29 C.F.R. € 785.39.
ii. As the Driver: If the employee is required to drive the car (or plane, boat, etc.), the travel time will be compensable (except for the bona fide meal or sleeping periods). 29 C.F.R. €785.41. If, however, an employee is offered the option of using public transportation to travel, but instead requests permission to drive a car, the employer may count as hours worked either the time the employee spent driving or the time it would have taken for him or her to travel using the public transportation. 29 C.F.R. € 785.40.
 
 
 

Break Time

Break time must be counted as work time where the breaks are 15-20 minutes or less. Employers must count these break times as "hours worked" and must pay for the time. Employers may not add the break times together and take a deduction from work time for this total time.

For example, an employee who works from 9:00 to 5:30 (with a 30 minute lunch which can be deducted) and who gets two 15 minute breaks cannot add the two 15 minute breaks together and say the employee only gets paid for 7.5 hours that day. Because breaks of short duration are considered as "work time," the employee should get paid his/her full 8 hours for that day.

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On-Call Time

Time that an employee is "on-call" may, under some circumstances, be considered as work time. The use of on-call time is fairly widespread. Generally, if the employee is on-call but can effectively use his or her time for their own purposes, then the time will not be considered work time. Courts look to a variety of factors to decide if on-call time is work time. For example, the frequency of the call outs, the expected response time, any restrictions on how far an employee may travel away from home, the ability of the employee to switch shifts, and the duration of the call out. On-call time must be assessed on a case-by-case basis and there is no way of describing a rule that will apply in every circumstance.

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Paid Time Off
Vacation, Holiday and Sick Time

Employers often give employees paid time off. This is a general category of leave time that includes vacation, holidays, sick days, etc. Time away from the job, when no work is being performed by the employee, is not work time. Thus, even if this time is considered "work time" for some other purpose (such as pension accruals, seniority, or collective bargaining agreement), it is not time the employer has to count as 'hours worked."

For example, if an employee works 10 hours a day on Monday-Wednesday, takes Thursday off, and works 8 hours on Friday, he has only worked 38 hours that week. By contrast, if he had actually worked 10 hours on Thursday, we would have had 48 hours and been entitled to overtime pay for the 8 hours of work over 40 hours.

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Sleep Time

For employees who work shifts of 24 hours or more, the FLSA permits a "sleep time exclusion" of up to 8 hours, if there is an "agreement" with the employees about this and adequate sleeping facilities are provided. All time during which an employee is required to perform active duties must be counted as work time, and if in reality the sleep period is interrupted to the point where the employee does not have the opportunity for at least 5 hours of sleep the entire time must be counted as working time. No sleep time exclusion is permitted for employees whose shifts are less than 24 hours.

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Training Time

Most training time is work time. All training time is work time if it occurs during an employee's regular shift, or if it is required by the employer. Training time does not have to be counted as work time only if it

(a) occurs outside of an employee's normal work schedule,
(b) is truly voluntary (as in with neither direct nor indirect pressure on the employee to attend, and with no repercussions if the employee chooses not to attend),
(c) not directly related to the employee's current job (i.e., the training is designed to qualify the employee to get a new job, and not to enhance the skills used by the employee on the existing job), and
(d) the employee does no other work during the training.
 

 

 

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