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Asleep on the Job: When You Have to Pay Employees for “Unproductive” Time

By Sherri Bennett, SPHR & SHRM-CP on Jun 16, 2020
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Asleep on the Job: When You Have to Pay Employees for “Unproductive” Time

The Fair Labor Standards Act, the federal law that regulates minimum wage and overtime pay, has a lot to say about when employees must be paid for time an employer might consider unproductive. Because the FLSA requires that non-exempt employees be paid for all “hours worked” – defined as time spent actually working and certain other time spent on employer-directed activities – an employer may have to pay for time these employees spend traveling, sleeping, serving an on-call period or in training.

Travel Time

Say, for instance, that a non-exempt company salesperson must travel from one client site to another for meetings throughout the day. Because this activity is required as a key part of the salesperson’s job, the FLSA considers the travel time as hours worked, and the employer must pay the employee’s travel time. The same would be true for repairpersons, delivery drivers, or others whose jobs necessitate travel between multiple locations during the workday.

In another common scenario, an employee needs to travel outside the city and back home in the same day to conduct a business meeting or attend a conference, an assignment that requires three hours of time on the road. Again, the travel time is considered hours worked, and the company is expected to pay for the time.

Similarly, if an employee already has completed his or her work day and returned home, and the employer then asks the worker to respond to an emergency that requires travel, the employee must be paid for all of the related time spent traveling.

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Non-exempt employees who travel overnight or on weekends for business also must be paid for travel time in some cases. Say an employee has to travel on a Sunday to participate in an out-of-town meeting Monday. If the employee’s normal work hours are 8 a.m. to 5 p.m. Monday through Friday, and the Sunday travel time falls within those same hours, the employer must pay the employee for the Sunday hours, including time spent driving to the meeting site or driving to an airport, waiting for a flight, in the air and traveling to a hotel for the overnight stay. If the employee’s travel time falls outside his or her normal work hours, the employer may not need to pay for the time unless the employee is required to perform some work during the travel period.

For all of these FLSA requirements, some states’ laws may have broader definitions of travel time or may impose additional payment requirements, so employers should check their state laws to ensure they’re correctly paying employees.

Sleep Time

Companies that require employees to work shifts of less than 24 hours must pay them for sleep time if the employee is permitted to sleep during the shift. For example, a health care or security worker might be required to work overnight, 12-hour shift and be allowed to sleep during some of that time. Provided he or she can respond as needed to the employer, the client, or an emergency situation, the employer must pay for the full 12 hours, including the time the worker may be sleeping.

When employees work shifts of 24 hours or more, employers may not need to pay them for time spent sleeping, as long as the worker has adequate sleeping accommodations, can sleep uninterrupted for at least five hours and has agreed with the employer that he or she will not be paid for regularly scheduled sleep periods of up to eight hours. If the employer requires the worker to perform work during the designated sleep period, the employee must be paid for the time spent working. If the required activity keeps the employee from getting at least five hours of sleep, he or she must be paid for the entire sleep period.

Again, some states have sleep time requirements that differ slightly from the FLSA’s. Employers should comply with the relevant laws that are most favorable to the employee.

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On-Call Time

The FLSA mandates that employees be paid for on-call time spent at the worksite, even if the employee is conducting personal activities, such as reading, sleeping, or watching television, during that time. When an employee is on call somewhere other than the employer’s premises, however, the worker usually is not entitled to compensation unless called to duty – in which case he or she must be paid for the time required to work.

Training Time

As noted above, the FLSA requires that non-exempt employees be paid for hours worked. Employer-mandated training or coursework generally falls into this category and, when an employee participates, he or she is entitled to compensation unless the training meets all four of the following criteria:

  • Attendance is voluntary;
  • The training takes place outside of the employee’s regular work hours;
  • The employee performs no productive work during the training; and
  • The training is not directly related to the employee’s job.

Under the FLSA, training or coursework that helps the worker better perform his or her existing role with the organization is considered directly related to the employee’s job. 

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