Introduction to the Fair Labor Standards Act (FLSA)

I. S LEEP T IME The DOL interpretative bulletin concerning sleep time is based on three different scenarios: (1) sleep time during a duty of less than 24 hours; (2) sleep time during a duty of 24 hours or more; and (3) sleep time when an employee resides on the employer's premises or works at home. Employees who are required to be on duty for less than 24 hours are considered working even if they are permitted to sleep or engage in other personal activities when not busy. 55 A telephone operator, for example, who is required to be on duty for specified hours, is working even though he is permitted to sleep when not busy answering calls. 56 When an employee is required to be on duty for 24 hours or more, the regulations allow the employer to agree with the employee or employee organization to exclude from hours worked bona fide, regularly-scheduled sleeping periods of not more than 8 hours. 57 When otherwise unpaid sleep time is interrupted by a call to duty, the time of the interruption must be counted towards hours worked. 58 When the interruptions prevent a reasonable night's sleep, the entire period must be counted as hours worked. 59 The DOL interpretative bulletin provides that when an employee does not get at least five hours of sleep, the entire period will be considered hours worked. 60 J. O N -C ALL OR S TANDBY T IME It is critical to determine whether on-call or standby time is considered hours actually worked under the Act. The significant issue is whether the time is sufficiently restricted so as to convert it to hours worked that must be counted toward overtime requirements. Although there is no bright line test to determine when an employee’s time becomes sufficiently restricted so that it converts to work time, the Ninth Circuit has provided a non-exhaustive list of factors to be analyzed when determining the degree to which an employee is free to engage in personal activities while on-call. The following factors should be considered:

 whether there was an on premises living requirement;

 whether there were excessive geographical restrictions on the employee’s movement;

 whether the frequency of calls was unduly restrictive;

 whether a fixed time limit for response was unduly restrictive;

 whether the on-call employee could easily trade on-call responsibilities;

 whether use of a pager could ease restrictions; and

 whether the employee had actually engaged in personal activities during call in time. 61

Introduction to the Fair Labor Standards Act (FLSA) ©2020 (s) Liebert Cassidy Whitmore 17