During an overnight shift, does an employee have to be paid when he or she is asleep?

It depends on the employee’s schedule and whether certain requirements are met.

Shifts of Less than 24 hours

Under the FLSA, an employee who works a shift less than 24 hours must be paid for the entire time he/she is required to be at the worksite even if he/she is permitted to sleep or engage in other personal activities when not busy. All the time is counted as work time that must be paid.

Shifts of 24-hours or more

If an employee is required to be at the worksite for 24 hours or more, the employer and employee may agree to not count as hours worked a bona fide regularly scheduled sleeping period of not more than eight hours, provided that (1) adequate sleeping facilities are furnished by the employer, (2) the employee’s time spent sleeping is usually uninterrupted, and (3) there is an expressed or implied agreement to exclude sleep time.

Live-in employee who resides at the worksite on a permanent basis

If an employee resides at his/her worksite on a “permanent basis,” meaning the employee has no other home, the employer and employee may agree to not count as hours worked not more than eight hours per night as sleep time as long as the employee is paid for some other hours during the workweek, and provided that (1) the employer and employee have a reasonable agreement to exclude sleep time, and (2) the employer provides the employee “private quarters in a homelike environment”.

Live-in employee who resides at the worksite for extended periods of time

If an employee resides at his/her worksite for “extended periods of time”, meaning the employee does not live there exclusively but meets the live-in residency requirements, the employer and employee may agree to not count as hours worked not more than eight hours per night as sleep time as long as the employee is paid for at least eight hours per 24-hour period, and provided that (1) the employer and employee have a reasonable agreement to exclude sleep time, and (2) the employer provides the employee “private quarters in a homelike environment”.

Note: See questions and answers for Live-in Domestic Service Employees for additional information regarding the definitions of “permanent basis” and “extended periods of time”.

October 2018

Tags: Sleep Time Requirements