I. INTRODUCTION
When work is “suffered or permitted” it is compensable work, even if not requested by the employer. Questions are often raised as to whether certain situations involve compensable time. Usually, it is the extent to which the employee is restricted in his or her ability to use the time for personal pursuits that is critical in making the determination as to whether time is compensable or not.
II. WAITING TIME
Waiting time or on-call time compensability is a common question. The determination depends on the extent to which the employee is restricted in his or her ability to use the time for personal pursuits. Contrast the situation where an employee is relieved from duty and in a long enough period to use the time effectively for personal purposes with an employee who is required to be on-call on or near the place of business and where the employee cannot effectively use the time as her own. The regulations illustrate that requiring an employee to merely leave a telephone number, either at home or with the business, where he can be reached while on-call, is only an inconvenience and noncompensable.
III. REST AND MEAL PERIODS
Five to 20 minute rest or meal breaks are considered as promoting the efficiency of employees and are compensable as hours worked. Bona fide meal periods are not considered compensable work time if the employee is completely relieved from duty to eat a regular meal. The law does not require employers to provide employees with meal or rest periods. Many States have their own labor laws providing that short rest, break or meal periods be provided to employees in some industries when working a certain number of hours. Neb.Rev.Stat. § 48-212 provides for not less than 30 consecutive minutes for lunch in each 8-hour shift for employees of assembling plants, workshops, or mechanical establishments, unless such business operate in three shifts of eight hours each 24 hours.
IV. SLEEP TIME
Even if an employee is allowed to sleep or pursue other personal activities while on duty for less than 24 hours, the employee is considered to be working and will be entitled to compensation. If an employee must be on duty for 24 hours or more, the employee and employer may agree to exclude up to eight hours from compensation for meal periods and regularly scheduled, uninterrupted sleep. When the sleep period is so interrupted that the employee cannot get a reasonable sleep period (usually five hours), the entire period is compensable working time.
V. PREPARATORY AND CONCLUDING ACTIVITIES
The Portal-to-Portal Act requires that all activities, which are an integral part of a “principal activity,” are compensable as hours worked. “Among the activities included as an integral part of the principal activity are those closely related activities which are indispensable to its performance.” Should these activities be conducted by the employee out of convenience, it is not directly related to principal activities and not compensable.
VI. LECTURES, MEETINGS AND TRAINING PROGRAMS
Attendance at lectures, meetings, training programs or similar activities is not compensable working time, if the following criteria are met:
VII. TRAVEL TIME
The time to travel to and from work is generally not compensable, including such travel from home directly to worksites other than the fixed location of the business. Exceptions to this rule include travel from home to a site in an emergency, travel out of town on a work-related assignment and travel required by the type of work the employee is in, e.g., visiting various sites during the course of the workday.
EMPLOYEE COMMUTING: The FLSA was amended by the “Employee Commuting Flexibility Act” as part of the “Small Business Job Protection Act of 1996” to allow employers and employees to agree on the use of employer-provided vehicles for commuting to and from work at the beginning and end of the workday, without such employee commuting time treated as hours worked.
VIII. UNWORKED LEGAL HOLIDAY
Questions are often asked regarding the problem of how to compute overtime in a workweek that includes an unworked legal holiday. For a nonexempt employee, pay for a holiday when no work is performed is not included in an employee’s regular rate of pay for overtime purposes. Since no work is actually performed, the hours of a legal holiday are not counted as hours worked when computing overtime hours and pay due to the employee. The unworked legal holiday rule is an exception to § 7(a) of the Fair Labor Standards Act. Whether the employer wishes to compensate a nonexempt employee for hours not worked due to a legal holiday is in the discretion of the employer and employment policy.
IX. CONCLUSION
In reviewing this article, please note that the discussion is on the general rules relating to compensable time and that there are several conflicting or contrasting court decisions interpreting these rules. Also, note that many issues in this area are to be resolved on a case-by case basis.