Employers operating in the care industry — a broad category that includes organizations such as hospitals, healthcare providers, home care providers and assisted living facilities — must be aware of what they can and cannot count as part of an employee’s “hours worked,” Brenda Hernandez, community outreach and resource planning specialist at the U.S Department of Labor’s Wage and Hour Division, said during a May 25 webinar.
Hernandez provided a series of example scenarios demonstrating to care industry employers which items must be included as hours worked. Such calculations are essential in determining whether workers have been paid the federal minimum wage and whether nonexempt employees have earned overtime pay, she continued.
Pre-shift work and waiting time
Employers generally must pay for the work an employee performs, even if they do not request that work, DOL has said. Per Hernandez, this extends to pre-shift work, such as when a home care employee arrives early to take care of a client, and it is an employer’s responsibility to make clear when this is not the case.
“The employer has a duty to ensure that work is not performed if the employer does not want the work to be performed,” Hernandez said. “The employer can not accept the benefits [of the work] without compensating employees for their work.”
Hours worked also may include time that an employee spends waiting, depending on whether the employee is “engaged to wait” or “waiting to be engaged,” Hernandez continued. The former is compensable; the latter is not.
For example, a home care worker who takes time to sit and read while a client is sleeping has been engaged to wait, Hernandez explained, and this time is therefore compensable. But an employee who has been told in advance that she can leave the job and does not have to be working during a specific time frame would not be compensated for the applicable timeframe.
Similarly, an employee who is required to remain on call while on the employer’s premises is considered to be working, according to a DOL fact sheet, whereas those who are required to remain on call at home or who are allowed to leave a message stating where they can be reached generally are not working.
Certain scenarios may pose exceptions, however. Hernandez said that an employee who is required to carry a cell phone so that the company can reach him at a specific time, but who is otherwise free to come and go or engage in personal activity during idle periods, is not considered working. But if that same employee receives phone calls that are so frequent that he can not use his time off freely, this time would be considered compensable, Hernandez noted.
Hernandez further demonstrated compliance with on-call regulations using the scenario of an assisted living facility in which four licensed nurses rotate being on call each week. The nurses are required to carry a cell phone and be within 45 minutes of the facility while on call, but are otherwise free to engage in personal activity. The nurses are paid for the time they spend responding to a call. The employer in this scenario would be FLSA-compliant, Hernandez said.
Rest periods, meals and breaks
Rest periods of 20 minutes or less are common in the care industry and are customarily paid as working time, Hernandez said.
Generally, bona fide meal periods lasting 30 minutes or more do not have to be compensated, she continued, so long as the employee is “truly free” of having to perform work-related duties during that time.
For example, a nurse who takes a meal break of 30 minutes or more may need to be compensated if, during the course of the break, he is frequently interrupted by residents who request his assistance. “If the employee’s meal is interrupted for the benefit of the employer, then the employee should be paid for the full 30 minutes,” Hernandez said.
Employers, she continued, need to communicate with employees in order to determine whether their meal periods are truly uninterrupted.
Training and travel
Employees generally must be paid for meetings, lectures and similar training events, unless all of the following apply, according to Hernandez:
- The training is voluntary.
- The training is not related to the employee’s job.
- Attendance is outside of the employee’s regular work hours.
- The employee does not perform any productive work during the training.
She noted that attendance at a training event is not truly voluntary if it is required by an employer, or if the employee is led to believe that his present working condition or employment may be affected if he does not attend.
So, if the administrator of a nursing home tells employees that a specialized care training session is voluntary, but a manager advises an employee to attend and has scheduled the employee’s time so that the employee can attend, the training is not considered voluntary, Hernandez said.
However, if a dishwasher decides to attend this voluntary training, the training is outside of the dishwasher’s regular work hours and the dishwasher does not perform any work during the course of the training, this would not be considered compensable time, Hernandez continued.
A common violation of the FLSA occurs when employers fail to compensate employees for the time they spend traveling between job sites, Hernandez said. Whether employees travel between sites to pick up equipment or tools or to meet with a manager, “everything in the workday must be counted as hours worked,” she noted.
For instance, a home care employee who ends her work day at 5 p.m. but who is told to provide training assistance to another facility would need to count the additional hours as compensable time. This includes any time the employee spends returning to her original work site to fill out a timesheet or perform other tasks, Hernandez said. If the employee does not need to return to her home office and instead travels home after the training assistance is completed, her time spent traveling home would not be counted as hours worked.
The FLSA’s regulations on sleep time compensability contain specific requirements depending on whether the employee is working more than 24 hours consecutively. If the employee is under the 24-hour threshold, time spent on duty is still compensable, even if the employee is permitted to sleep or perform personal activities when he is not busy, Hernandez said.
An employee who works for 24 hours or more may exclude bona fide, regularly scheduled sleep periods from his hours worked, but only if the employer provides adequate sleeping facilities and the employee can enjoy an uninterrupted sleep, Hernandez said. Only eight such hours may be counted as hours worked, she noted.
However, if the employee cannot engage in a reasonable, uninterrupted night’s sleep during that time, or if the time spent sleeping amounts to fewer than five hours, employers must include sleep time as hours worked, Hernandez said.
She gave an example of a home care attendant who is not paid for the period between 11 a.m. and 6 p.m., which is considered sleep time by the employer. However, if a patient wakes up the employee each night for assistance at 1 a.m., and once more at 3 a.m., the employer would not be able to count this as sleep time, Hernandez said.
But if the same employee is only interrupted once per night at 12 a.m., the employer would be able to exclude the five consecutive hours of uninterrupted sleep time from hours worked, she added.