Best Overtime Attorney Answer: Am I entitled to overtime pay for hours I am required to sleep on the job site? How should I be paid if I work 24 hour shifts? Can my boss deduct time for naps on 24 hour shifts? How do I find a top wage lawyer in Ohio?
The Fair Labor Standards Act (“FLSA”) directly addresses the issue of when and under what circumstances that employers must pay their employees for sleep time. Under the FLSA, an employee scheduled to work for less than 24 hours at a time must be paid for all overnight hours, even if that employee is given time to sleep. Thus, if an employee is scheduled to work a 23 hour and 55 minutes, that employee must be paid for 23 hour and 55 minutes. Now, it gets a little more complicated when the employee is scheduled to work for at least 24 consecutive hours. In that situation, the default rule is that the employee gets paid for all the time worked. However, the employee and the job can agree that up to eight hours is not compensable if, and only if, the employer provides the employee with “adequate sleeping facilities” and allows the employee to mostly have uninterrupted night of at least five hours of sleep. But, if an employee’s sleep is interrupted to do work, the entire amount of the interrupted sleep counts as compensable hours worked by the employee. However, under the FLSA’s companionship exemption, certain employees providing “companionship services” are not required to be paid minimum wage or overtime.
The agreement between the employee and employer to not pay for sleep time can be an “express or implied agreement.” An express agreement can be in many forms, such as a contract, signed handbook, offer letter, or even through a very direct oral communication. An implied agreement comes from a general understanding that may or may not be written anywhere. Depending on the circumstances, the existence of an implied agreement would likely cause a question of fact that should be decided by a jury, which increases the likelihood of settlement.
Another question of fact may come from a dispute over whether there were “adequate sleeping facilities” provided by the job. Do couches or reclining chairs rate as adequate? Probably not. Do futons? Maybe. What if the futons are in a hallway or in a room with co-ed workers? This is where it becomes more a question of fact.
Let’s look at the specific laws. Pursuant to 29 CFR § 785.20: “Under certain conditions an employee is considered to be working even though some of his time is spent in sleeping or in certain other activities.” Then 29 CFR § 785.21 provides:
An employee who is required to be on duty for less than 24 hours is working even though he is permitted to sleep or engage in other personal activities when not busy. A telephone operator, for example, who is required to be on duty for specified hours is working even though she is permitted to sleep when not busy answering calls. It makes no difference that she is furnished facilities for sleeping. Her time is given to her employer. She is required to be on duty and the time is worktime.
And, 29 CFR § 785.23 provides:
(a) General. Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night’s sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked.
(b) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep, the entire period must be counted. For enforcement purposes, the Divisons have adopted the rule that if the employee cannot get at least 5 hours’ sleep during the scheduled period the entire time is working time.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws contact the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at Spitz, The Employee’s Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
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