Gina Johnson
The number of hours that workers get paid depends on whether they are expected to sleep or work for most of their shift. Workers who are allowed to sleep during a night shift and are only required to respond when needed are paid for the hours when they are awake and undertaking work. This is because there is a fundamental distinction between 'working' and being 'available for work'. In the United States, the Fair Labor Standards Act (FLSA) enforced by the Department of Labor (DOL) governs sleeping time overtime rules, although some states have established more restrictive laws. In California, non-exempt employees working 24 hours or more a day must be paid for sleeping time unless certain circumstances are met, such as providing uninterrupted sleep for more than five hours and furnishing adequate sleeping facilities. In the United Kingdom, the National Minimum Wage Regulations 2015 provide that a worker who is not actually working but is available at or near a place of work may be treated as working, with exceptions for those who reside at or near the place of work.
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What You'll Learn
National Minimum Wage regulations for overnight shifts
The number of hours that night workers are entitled to the National Minimum Wage (NMW) depends on whether they are expected to work or sleep for most of their shift. The National Minimum Wage Regulations 2015 provide that a worker who is not actually working may be treated as working if they are available (and are required to be available) at or near a place of work for the purpose of performing work.
In sectors such as the care industry, ‘sleep-in’ shifts are commonplace. ‘Sleep-in’ shifts are shifts where workers are permitted to sleep while at work overnight but must be available to be woken in order to perform relevant duties if required. However, there are two key exceptions under the NMW Regulations under which these sorts of ‘sleep-in’ shifts should not be considered ‘working time’ for NMW purposes:
- Where the worker's home is at or near the place of work, the time the worker is entitled to spend at home.
- Where the worker sleeps at or near a place of work and is provided with suitable facilities for sleeping, the time during which the worker is allowed to sleep is not counted.
The Supreme Court has found that only the time when workers are awake and working counts towards NMW calculations. The Court said that there is a fundamental distinction between ‘working’ and being available for work. For workers who are allowed to sleep during a night shift and are only required to respond when needed, the relevant hours for NMW calculations are the hours when the worker is awake in order to undertake work.
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The Fair Labor Standards Act (FLSA)
Regarding overnight shifts and sleeping time, the FLSA makes a distinction between employees who are on duty for less than 24 hours and those on duty for 24 hours or more. For employees on duty for less than 24 hours, even if they are permitted to sleep or engage in personal activities, they are still considered working and should be compensated. This is because they have forfeited control of their activities to the benefit of the employer, who may call on them at any time. A classic example is a firefighter who is required to be at the fire station unless responding to an emergency.
For employees on duty for 24 hours or more, such as those in the care industry, they may agree with their employer to exclude bona fide regularly scheduled sleeping periods of up to 8 hours from their compensable hours, provided adequate sleeping facilities are provided, and the employee can usually get an uninterrupted night's sleep. If the employee does not get at least 5 hours of sleep, no reduction in compensable hours is permitted. Additionally, the Supreme Court has ruled that only time when workers are awake and working counts towards minimum wage calculations, distinguishing between 'working' and 'available for work'.
It is worth noting that some states have established more restrictive sleeping time overtime laws than those outlined in the FLSA, and employers must comply with the laws that provide the greatest benefits to employees.
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State-specific sleeping time overtime laws
While there are no night shift laws or regulations that require employers to let their employees sleep on the job, they cannot refuse to pay employees who sleep during their shift. Many states have the same sleeping time overtime rules as the Fair Labor Standards Act (FLSA) enforced by the US Department of Labor (DOL). However, some states have established more restrictive sleeping time overtime laws.
- California: Employers cannot exclude sleep time from wages during "on-call" time, even with an agreement with the employee.
- Texas: A wage agreement can be made, paying employees at a lower rate (at least minimum wage) for compensable sleeping time. However, if this results in overtime hours, the overtime pay must be calculated according to the weighted average method.
- Kentucky: A workweek consists of 6 consecutive days. Every hour worked on the 7th consecutive day counts as overtime.
It is important to note that if a state does not have its own overtime laws, it defaults to federal law. However, if a state has its own overtime laws, those take precedence, and employers must abide by whichever law is more favourable to the employee.
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Wage orders, California Codes of Regulation, and California Statutes
In California, the payment of wages and hours of work for employees is governed by a complex set of statutes, regulations, interpretations, and precedents. The state's laws and rules on wages are set out in the California Labor Code and in wage orders issued by the state's Industrial Welfare Commission (IWC). While the IWC is no longer operational, its wage orders continue to be enforced by the California Division of Labor Standards Enforcement (DLSE). These wage orders cover wages, hours, and working conditions for various occupations, trades, and industries.
The California Labor Code determines wage standards for employees in both the private and public sectors. These standards include methods for calculating and paying employees' wages, deductions from wages, notices and record-keeping, establishing the state minimum wage rate, and determining hours worked. The Labor Code also includes provisions for the payment of wages for overtime work, with penalties for non-compliance. For example, Labor Code Section 221 prohibits employers from making deductions from the wages earned by employees, except in specific cases of cash shortage, breakage, loss of equipment, or overpayment.
The IWC wage orders are industry-specific and cover a range of occupations, trades, and industries. Copies of the Minimum Wage and industry-specific Wage Orders can be downloaded from the DLSE website or obtained from a local DLSE district office. These orders are regularly amended to reflect changes in legislation and ensure compliance with state law.
In addition to the Labor Code and IWC wage orders, other regulations and statutes impact wage payments and hours of work in California. For example, Title 13 of the California Code of Regulations includes sections regulating the hours of drivers, with specific provisions for premium wage rates for overtime hours worked.
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Written agreements for employers
In the United States, the Fair Labor Standards Act (FLSA) and the Portal-to-Portal Act generally govern whether employers must pay for an employee's sleep time. The FLSA requires that employees be paid for all hours worked, and the Portal-to-Portal Act excludes sleep time and other activities that are "preliminary or postliminary" to the employee's principal activities.
The US Department of Labor's Wage and Hour Division (WHD) accepts "any reasonable agreement of the parties that takes into consideration all of the pertinent facts." In other words, the agreement should reflect the specific circumstances of the situation. For example, a home care employee who regularly has the opportunity to sleep overnight may reasonably exclude sleep time from their hours worked. On the other hand, if the employee is present to provide around-the-clock care, excluding sleep time from their hours worked may not be reasonable.
To exclude a live-in employee's sleep time from their hours worked, an employer must provide "private quarters in a homelike environment." This means that the employee must have a living and sleeping space separate from the person receiving services (often referred to as the "consumer") or any other employees. For example, if an employee sleeps on a pull-out couch in the living room while the consumer sleeps in their bedroom, this would likely qualify as providing the employee with private quarters in a homelike environment, and exclusion of sleep time would be permissible. However, if the employee sleeps in the same room as the consumer to provide assistance with toileting or medical tasks during the night, the agreement might not be reasonable, and the requirements for excluding sleep time would not be met.
In California, non-exempt employees who work 24 hours or more per day must be paid for time spent sleeping unless certain circumstances are met. These circumstances include:
- The employer must allow the employee to have uninterrupted sleep for more than five hours. If the employee is free to do what they want during this time and chooses not to sleep, the employer does not have to pay them, provided the other criteria are met.
- The time excluded for uninterrupted sleep cannot be more than eight hours.
- The employer must furnish adequate sleeping facilities, such as a room with a bed or a motel/hotel room.
Additionally, if an employee's schedule is less than 24 hours, they are not entitled to be paid for time spent sleeping. However, if the employee is required to stay on the premises while they sleep, this could complicate matters and may result in the employee being paid for their sleep time.
It is important to note that the laws and regulations regarding paying employees for sleep time can be complex and vary by state and industry. Employers should consult with a skilled and experienced attorney specializing in wage and hour cases to ensure they are complying with all applicable laws and regulations.
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