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(Revised July 2008) (PDF)
The
Fair Labor Standards Act (FLSA) requires covered
employers to pay non exempt employees at least the federal
minimum wage of $6.55 per hour effective July 24, 2008 and$7.25
per hour effective July 24, 2009, for all hours worked and overtime pay for hours worked over 40
in a workweek. The FLSA is administered by the Wage and Hour Division of the
U.S. Department of Labor.
Hospitals and other institutions “primarily engaged in the
care of the sick, the aged, or the mentally ill” are covered employers under
Section 3(s)(1)(B) of the FLSA. Thus, hospitals, residential care
establishments, skilled nursing facilities, nursing facilities, assisted living
facilities, residential care facilities and intermediate care facilities for
mental retardation and developmentally disabled must comply with the minimum wage, overtime and youth employment requirements of the
FLSA.
Summary
This fact sheet
provides guidance regarding common FLSA violations found by the Wage and Hour
Division during investigations in the health care industry relating to the
failure to pay employees for all hours worked. Nonexempt employees must be paid
for all hours worked in a workweek. In general, “
hours worked”
includes all time an employee must be on duty, on the employer premises, or at
any other prescribed place of work. Also included is any additional time the
employee is “suffered or permitted” to work. The FLSA requires employers to pay
for hours actually worked, but there is no requirement for payment of holidays,
vacation, sick or personal time.
The failure to
properly count and pay for all hours that an employee works may result in a minimum
wage violation
if the employee’s hourly rate falls below the required federal
minimum wage
when his or her total compensation is divided by all hours worked. More likely,
the failure to count all hours worked will result in an overtime violation because employers have not
fully accounted for hours worked in excess of 40 during the workweek.
Rounding Hours Worked
Some employers track employee hours worked in 15 minute increments, and the FLSA allows an employer to round employee time to the nearest quarter hour. However, an employer may violate the FLSA
minimum wage and
overtime pay requirements if the employer always rounds down. Employee time from 1 to 7 minutes may be rounded down, and thus not counted as hours worked, but employee time from 8 to 14 minutes must be rounded up and counted as a quarter hour of work time.
See Regulations 29 CFR 785.48(b).
Example
#1:
An
intermediate care facility docks employees by a full quarter hour (15 minutes)
when they start work more than seven minutes after the start of their scheduled
shift. Does this practice comply with the FLSA requirements? Yes, as long as
the employees’ time is rounded up a full quarter hour when the employee starts
working from 8 to 14 minutes before their shift or if the employee works from 8 to 14 minutes beyond the scheduled end of their shift.
Example
#2:
An employee’s schedule is 7 a.m. to 3:30 p.m. with a thirty minute unpaid lunch break. The employee receives
overtime compensation after 40 hours in a workweek. The employee clocks in 10 minutes early every day and clocks out 7 minutes late each day. The employer follows the standard rounding rules. Is the employee entitled to
overtime compensation? Yes. If the employer rounds back a quarter hour each morning to 6:45 a.m. and rounds back each evening to 3:30 p.m., the employee will show a total of 41.25 hours worked during that workweek. The employee will be entitled to additional
overtime compensation for the 1.25 hours over 40.
Example
#3:
An employer only records and pays for time if employees work in full 15 minute increments.
An employee paid $10 per hour is scheduled to work 8 hours a day Monday through Friday, for a total of 40 hours a week. The employee always clocks out 12 minutes after the end of her shift. The employee is paid $400 per week. Does this comply with the FLSA? No, the employer has violated the overtime requirements. The employee worked an hour each week (12 minutes times 5) that was not compensated. The employer has not violated
the minimum wage requirement because the employee was paid $9.75 per hour ($400 divided by 41 hours). However, the employer owes the employee for one hour of overtime each week.
Travel Time
Time spent by an employee in travel as part of his principal activity, such as travel from jobsite to jobsite during the workday, must be considered as hours worked. An employee who travels from home before the regular workday and returns home at the end of the workday is engaged in ordinary home-to-work travel. This is not considered hours worked.
See Regulations 29 CFR 785.33.
Example
#4:
A
licensed practical nurse (LPN) works at an assisted living facility which has a
“sister facility” 20 miles away. There have been times that the LPN has been
asked to fill in for someone at the other facility after she completes her
shift at her normal work site. It takes her 30 minutes to drive to the other
facility. The travel time is not recorded on her time sheet. Is this a
violation of the FLSA? Yes. The travel time must be considered part of the
hours worked.
Training and
Seminars
Attendance at
lectures, meetings, training programs and similar activities are viewed as
working time unless all of the following criteria are met:
·
Attendance is outside
of the employee’s regular working hours;
·
Attendance is in fact
voluntary;
·
The course, lecture,
or meeting is not directly related to the employee’s job; and
·
The employee does not
perform any productive work during such attendance.
See Regulations 29 CFR 785.27.
Example
#5:
A
residential care facility offers specialized training on caring for Alzheimer
residents. There are two workshops: one in the evening for the day shift and
one during the day for the evening shift. All employees are required to attend.
Is this compensable time? Yes, because the training is not voluntary and is
related to the employees’ jobs.
Example
#6:
The
administrator of a nursing home says specialized patient care training is voluntary,
but the nursing supervisors expect all employees on their units to attend and
schedule times for each employee to go. Is the time considered hours worked?
Yes, the time would be considered hours worked. When the nursing supervisors
expect all unit employees to attend and schedule their times, it is not truly
voluntary.
Example
#7:
The
dishwasher decides to go to the Alzheimer’s training session after his shift.
Must the administrator pay for the dishwasher’s time spent at the training
session? No, because all four criteria above are met. It is not considered
hours worked.
Example
#8:
The
administrator provides a Tai Chi course to residents and allows employees to
attend during their off-duty hours. Do employees have to be paid for the time
they attend this course? No, the employees do not have to be paid because
attendance is voluntary and the other three criteria are met.
Meal Breaks
Bona-fide meal
periods (typically 30 minutes or more) are not work time, and an employer does
not have to pay for them. However, the employees must be completely relieved
from duty. When choosing to automatically deduct 30-minutes per shift, the
employer must ensure that the employees are receiving the full meal break.
See Regulations 29 CFR 785.19.
Example
#9:
A
skilled nursing facility automatically deducts one-half hour for meal breaks
each shift. Upon hiring, the employer notifies employees of the policy and of
their responsibility to take a meal break. Does this practice comply with the
FLSA? Yes, but the employer is still responsible for ensuring that the
employees take the 30-minute meal break without interruption.
Example
#10:
An
hourly paid registered nurse works at a nursing home which allows a 30-minute
meal break. Residents frequently interrupt her meal break with requests for
assistance. Must she be paid for these frequently interrupted meal breaks? Yes,
if employees’ meals are interrupted to the extent that meal period is
predominately for the benefit of the employer, the employees should be paid for
the full 30-minutes.
Other Breaks
Rest periods of
short duration, generally running from 5 minutes to about 20 minutes, are
common in industry. They promote the efficiency of the employee and are
customarily paid for as work time. It is immaterial with respect to
compensability of such breaks whether the employee drinks coffee, smokes, goes
to the rest room, etc.
See Regulations 29 CFR 785.18.
Example
#11: Many third shift
nursing home employees who smoke prefer to take three ten-minute unpaid smoke breaks instead of their 30-minute unpaid meal break. Is it okay for them to substitute
the smoke breaks for their meal break? No, the employee must be compensated for
the smoke breaks.
On-Call Time An employee who is required to remain on
call on the employer's premises or so close to the premises that the employee
cannot use the time effectively for his or her own purpose is considered
working while on-call. An employee who is required to carry a cell phone, or a
beeper, or who is allowed to leave a message where he or she can be reached is
not working (in most cases) while on-call. Additional constraints on the
employee's freedom could require this time to be compensated.
See Regulations 29 CFR 785.17.
Example
#12: An assisted living
facility has four LPN wellness coordinators who are paid hourly. They rotate
being on-call each week. They are required to carry a cell phone and be within
45 minutes of the facility when they are on-call. They are not paid for all
time spent carrying the cell phone but are paid for time spent responding to
calls and time when they have returned to work at the assisted living facility.
Does this comply with the FLSA? Yes.
Unauthorized
Hours Worked
Employees must be
paid for work “suffered or permitted” by the employer even if the employer does
not specifically authorize the work. If the employer knows or has reason to
believe that the employee is continuing to work, the time is considered hours
worked.
See Regulation 29 CFR 785.11.
Example
#13:
A
residential care facility pays its nurses an hourly rate. Sometimes the
residential care facility is short staffed and the nurses stay beyond their
scheduled shift to work on patients’ charts. This results in the nurses working
overtime. The director of nursing knows additional time is being worked, but
believes no overtime is due because the nurses did not obtain prior
authorization to work the additional hours as required by company policy. Is
this correct? No. The nurses must be paid time-and-one-half for all FLSA
overtime hours worked.
Example
#14:
An hourly paid office clerk is working on a skilled nursing
home’s quarterly budget reports. Rather than stay late in the office, she takes
work home and finishes the work in the evening. She does not record the hours
she works at home. The office manager knows the clerk is working at home, but
since she does not ask for pay, assumes she is doing it “on her own.” Should
the clerk’s time working at home be counted? Yes. The clerk was “suffered and
permitted” to work, so her time must be considered hours worked even thought
she worked at home and the time was unscheduled. See Regulations 29 CFR 785.12.
Where to Obtain Additional Information
For additional information, visit our Wage and Hour
Division Website: http://www.wagehour.dol.gov
and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
The FLSA statute appears at 29 U.S.C. § 201 et seq. The federal
regulations regarding hours worked appear in 29 C.F.R. Part 785.
When the state
laws differ from the federal FLSA an employer must comply with the higher
standard. Links to your state labor department can be found at www.dol.gov/esa/contacts/state_of.htm.
This publication is for general information and is not to be
considered in the same light as official statements of position contained in
the regulations.
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