Under the Act an employee must be compensated for all hours worked.
As a general rule the term ``hours worked'' will include: (a) All time
during which an employee is required to be on duty or to be on the
employer's premises or at a prescribed workplace and (b) all time during
which an employee is suffered or permitted to work whether or not he is
required to do so. Thus, working time is not limited to the hours spent
in active productive labor, but includes time given by the employee to
the employer even though part of the time may be spent in idleness. Some
of the hours spent by employees, under certain circumstances, in such
activities as waiting for work, remaining ``on call'', traveling on the
employer's business or to and from workplaces, and in meal periods and
rest periods are regarded as working time and some are not. The
governing principles are discussed in part 785 of this chapter
(interpretative bulletin on ``hours worked'') and part 790 of this
chapter (statement of effect of Portal-to-Portal Act of 1947). To the
extent that these hours are regarded as working time, payment made as
compensation for these hours obviously cannot be characterized as
``payments not for hours worked.'' Such compensation is treated in the
same manner as compensation for any other working time and is, of
course, included in the regular rate of pay. Where payment is ostensibly
made as compensation for such of these hours as are not regarded as
working time under the Act, the payment is nevertheless included in the
regular rate of pay unless it qualifies for exclusion from the regular
rate as one of a type of ``payments made for occasional periods when no
work is performed due
to * * * failure of the employer to provide sufficient work, or other
similar cause'' as discussed in Sec. 778.218 or is excludable on some
other basis under section 7(e)(2). For example, an employment contract
may provide that employees who are assigned to take calls for specific
periods will receive a payment of $5 for each 8-hour period during which
they are ``on call'' in addition to pay at their regular (or overtime)
rate for hours actually spent in making calls. If the employees who are
thus on call are not confined to their homes or to any particular place,
but may come and go as they please, provided that they leave word where
they may be reached, the hours spent ``on call'' are not considered as
hours worked. Although the payment received by such employees for such
``on call'' time is, therefore, not allocable to any specific hours of
work, it is clearly paid as compensation for performing a duty involved
in the employee's job and is not of a type excludable under section
7(e)(2). The payment must therefore be included in the employee's
regular rate in the same manner as any payment for services, such as an
attendance bonus, which is not related to any specific hours of work.
[46 FR 7313, Jan. 23, 1981]
