Weathering the Storm: Understanding Sleep Time Deductions for Extended Employee Shifts

Quick Hits

• When an employee is required to be on duty for more than twenty-four hours, the FLSA allows employers to exclude up to eight hours of sleep time from compensable hours.
• This exclusion applies where: (1) there is an implied or express agreement to the exclusion; (2) the employer provides adequate sleeping facilities; and (3) the employee gets at least five hours of uninterrupted sleep.
• Nonexempt employees who are required to be on duty for fewer than twenty-four hours must be paid for all hours, even those spent sleeping.

The Fair Labor Standards Act and Sleep Time

The FLSA requires employers to pay nonexempt employees for all hours worked, and typically, any time that the employer requires employees to remain on-site counts as hours worked. But the FLSA regulations permit an employer to exclude up to eight hours of sleep time from compensable hours when an employee is required to be on duty for twenty-four hours or more, if the following requirements are met: (1) the employer and employee have an express or implied agreement to exclude the sleep time from hours worked; (2) the employer provides the employee with adequate sleeping facilities; and (3) the employee can usually enjoy an uninterrupted night’s sleep. The U.S. Department of Labor (DOL), in its Field Operations Handbook and Field Assistance Bulletin 2016-01, provides guidance on each of these requirements.

The existence of an agreement can be manifested in writing or orally, or it can be implied by the parties’ conduct. In its Field Operations Handbook, the DOL offers an example of an implied agreement, where the employer has a “usual practice” of excluding sleep time from work shifts of twenty-four hours or more, and the employee, who is regularly required to work such shifts, has never objected to the exclusion. Courts have generally held that an employer’s published policy explaining the sleep time deduction—combined with the employee’s continued employment—satisfies this requirement.

Whether sleeping facilities are adequate is a fact-specific assessment. According to the DOL, this generally requires access to “basic sleeping amenities, such as a bed and linens, reasonable standards of comfort, and basic bathroom and kitchen facilities.” “The designated sleeping area and other facilities can be shared or private.” The DOL notes, however, that context is important, and other types of facilities could meet the requirement in other circumstances.

As for what constitutes an “uninterrupted night’s sleep,” the regulations have defined this as at least five consecutive hours. Notably, if an employee regularly works shifts of twenty-four hours or more, limited interruptions to the five-hour period are permitted so long as they do not occur on more than half of the employee’s scheduled shifts. This rule, however, likely does not apply in the unusual circumstance in which an employee who normally works shifts of fewer than twenty-four hours is required to remain at the workplace for twenty-four hours or more because of an unusual weather event. In the latter case, the five-hour sleep period should truly be uninterrupted; otherwise, the entire period could be considered compensable time.

Employers may deduct only the actual hours spent sleeping, subject to a maximum deduction of eight hours per sleep period. Even when employees sleep for longer periods, no more than eight hours may be excluded from compensation.

Considerations for Employers

During a weather event, such as a snowstorm or hurricane, when travel to and from the workplace may be difficult, if not impossible, employers may require employees to remain at the workplace for extended periods of time to ensure staffing coverage. In anticipation of such situations, employers may wish to consider developing and implementing sleep time policies that specifically exclude up to eight hours of sleep time during shifts of twenty-four hours or more. They should also ensure that there are adequate sleeping facilities and that employees receive at least five uninterrupted hours of sleep.

There may be situations in which an employee chooses—and the employer permits but does not require the employee—to remain at the workplace overnight in order to avoid travel difficulties. Under such circumstances, the employee need only be paid for those hours that the employee is scheduled to work by the employer, and not for those additional hours when the employee is on the premises by his or her own choice, as long as the employee is not performing work during that time.

Notably, state wage and hour laws may impose additional or different requirements regarding sleep time deductions. Some states do not permit employers to exclude sleep time from compensable time and require employers to compensate employees for all time they are required to be on-site, even if they are sleeping. Ideally, a thorough review of applicable state regulations should precede the implementation of any sleep time deduction policy.

Ogletree Deakins’ Wage and Hour Practice Group will continue to monitor developments and will provide updates on the Wage and Hour blog as additional information becomes available.

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