US Department of Labor Issues Home Care Specific “Sleep Time” Guidance
May 5, 2016 03:10 PM
A longstanding area of confusion in federal minimum wage and overtime law has been the issue as to when an employer can exclude sleep time from the calculation of “hours worked” for purposes of calculating employee compensation. With the advent of change in the application of federal overtime requirements to home care workers previously exempt from the Fair Labor Standards Act (FLSA), the sleep time standards have become a big home care issue. On April 25, 2016, the U.S. Department of Labor, Wage and Hour Division (DoL) issued detailed sleep time guidance focused on “domestic service,” specifically home care services. While the guidance does not establish any new standards, it applies existing standards to various home care situations.
As a general rule, an employer may exclude sleep time from the calculation of the number of hours worked. An employee is entitled to be paid only for hours worked, and the determination as to whether overtime is also owed depends on the total number of hours worked. However, there are numerous qualifications and limitations on an employer’s authority to exclude sleep time from hours worked. To start with, DoL divides home care into three categories for purposes of the sleep time guidance: live-in employees; those who work shifts of 24 hours or more; and those who work shifts of 24 hours or less.
The guidance first sets out the standards for determining whether an employee meets the “live-in” standard. That requires the employee to reside at the worksite on a permanent basis, defined as seven nights a week and having no other home. Non-permanent live-in status requires working and sleeping at the worksite five days a week for 120 or more hours or five consecutive nights.
For sleep time of “live-ins” to be excluded from the number of hours worked, there must be a “reasonable agreement” between the employer and employee to exclude sleep time. In addition, the employee must have “private quarters in a homelike environment.” DoL is somewhat flexible on the "private quarters" requirement, recognizing the realities of today’s caregiving. Separate bedrooms with a bed, lighting, and a space or dresser to keep personal belongings are nearly a necessity although the use of a pull out couch in a living room “would likely qualify.” Sharing a bedroom in order to be close to the client would not.
With non-permanent “live-in” employees, up to eight hours per night of sleep time can be excluded provided the employee is paid for at least eight hours of work each 24-hour period. For permanent “live-in” employees, up to eight hours of sleep time can be excluded as long as the employee is paid for some other hours in the workweek. The sleep time that can be excluded must only be at night. The sleep time exclusion also only applies if the worker “regularly has the opportunity to sleep overnight.” There is no specific number of hours that must be paid to qualify if the employee is a permanent live-in.
Shifts of 24 hours or more
The standards for excluding sleep time are different for 24 hour shift employees than for live-ins. Instead of the requirement of “private quarters,” 24-hour shift workers must be provided “adequate sleeping facilities.” In addition, the shift worker must “usually enjoy an uninterrupted night’s sleep.” Finally, the parties must “have an expressed or implied agreement.” Accordingly, the qualification standards for excluding sleep time are distinct from the live-in standards.
DoL interprets the requirement for “adequate sleeping facilities” to include basic sleeping amenities, but does not require private space as with live-ins. DoL recognizes that this is an intensely factual matter where context is important.
With respect to “uninterrupted night’s sleep,” DoL requires at least five consecutive hours of sleep. “Usually” means at least half of the time. Any time worked during the designated sleep period counts as time worked even if the “uninterrupted night’s sleep” standard is met. The sleep time need not be at night. However, it must be in a “fixed window.”
An employer of a 24-hour shift worker may exclude up to eight hours of sleep time each night as long as the employee receives some pay for the week. The calculation of the excluded time is based on the actual amount of sleep time that occurs, not the amount in the agreement.
Shifts of fewer than 24 hours
An employer may not exclude any sleep time from hours worked if the employee does not reside at her worksite and works shifts of fewer than 24 hours. That standard applies even if the employee is specifically permitted to sleep while on duty. Note that a worker working two separate 12 hour shifts on two different days is not a 24-hour shift employee.
There are limitations even where the sleep time exclusion qualifications are met. These limitations are:
Any interruption in sleep time must be treated as hours worked. For example, if the home care worker is needed to provide bathroom assistance during sleep time and it takes 20 minutes, that time is considered hours worked and is compensable.
No sleep time can be excluded on any given night unless the worker gets at least a total of five hours of uninterrupted sleep time. These five hours do not need to be continuous.
The DoL guidance includes numerous home care-related examples on the application of the sleep time exclusion standards. It would be stretch to say that the guidance is 100% clear and answers all questions that home care employers have. However, that lack of clarity and comprehensiveness does provide a clear message to employers that caution is essential whenever attempting to rely on the sleep time exclusion to calculate compensable hours worked in home care. Facts matter a lot on this issue. In addition, an employer’s plan on the hours worked and the sleep time excluded may not match reality and reality controls under the FLSA.
The DoL guidance is available here.