Under my state law, all sleep time during which a home care worker is required to be in the home must be paid at the state minimum wage or higher. In other words, under state law, all sleeping hours must be included as worked, paid time. But under the federal FLSA, this sleep time can under many circumstances be excluded from hours worked. Must those hours, because they are paid pursuant to state law, be included in a calculation of overtime due pursuant to the FLSA?

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Under my state law, all sleep time during which a home care worker is required to be in the home must be paid at the state minimum wage or higher. In other words, under state law, all sleeping hours must be included as worked, paid time. But under the federal FLSA, this sleep time can under many circumstances be excluded from hours worked. Must those hours, because they are paid pursuant to state law, be included in a calculation of overtime due pursuant to the FLSA?

No. Payment for time not otherwise required to be compensated under the FLSA does not necessarily convert that time into FLSA hours worked—i.e., time that must be paid according to FLSA requirements. The Department’s regulations provide that whether the time that is not required to be compensated becomes hours worked depends on the intent of the parties. See 29 C.F.R. § 778.320. If the employer and employee have an agreement to exclude sleep time from FLSA hours worked, even if the time is paid under state law, that agreement, if reasonable, controls.

In such circumstances, the excluded hours do not count towards total hours worked for purposes of determining whether the FLSA’s minimum wage requirement is met or how much overtime compensation is owed pursuant to the FLSA. In addition, the money paid for the excluded time is not to be included in calculating the employee’s regular hourly rate for FLSA purposes, nor may it be counted toward meeting any FLSA overtime obligation the employer has.

For example, assume a home care worker works 50 hours per week during daytime shifts and 32 hours per week on overnight shifts (four, eight-hour overnight shifts, for example), during which she gets uninterrupted sleep and otherwise meets the requirements for the exclusion of sleep time under the FLSA (the sleep time rules apply to a live-in worker or one who works shifts of 24 hours or more.) She is paid $12 per hour for daytime work and $10 per hour for the overnight time. She would be owed 10 hours of overtime compensation (50 non-excludable hours minus 40 hours for which no overtime must be paid). Because her regular rate of pay for FLSA hours worked is $12, her overtime compensation due is $60 ($12 x .5 x 10). The $320 she receives for the 32 overnight hours may not be counted toward the $60 obligation, so she should receive $980 ($600 regular pay for daytime hours + $60 overtime compensation + $320 pay for sleep time (required by state law)) each week.

October 2018

Tags: Sleep time Requirements