Three Updated Documents on the Fair Labor Standards Act (FLSA)
The U.S. Department of Labor (DOL) has issued three updated documents that provide guidance on applicable rules that explain under what circumstances an employer may exclude “sleep time” from an employee’s hours worked under the Fair Labor Standards Act (FLSA). The first guidance document is the “Field Assistance Bulletin 2016-1” which provides direction to Wage and Hour Division (WHD) field staff regarding the exclusion of sleep time from hours worked of domestic service employees. The second is an updated Frequently Asked Questions document, please note questions 30 - 39 on Sleep Time Requirements. The third is a Fact Sheet #79D. It is important for members to review the material with their compliance staff or counsel to ensure FLSA compliance and any impact it may have with the implementation of minimum wage increases.
The guidance document provides definitions and distinctions between domestic live-in service employees, shifts of 24 hours or more, and shifts of fewer than 24 hours. It provides a definition of live-in employees and the requirements for excluding an employee’s sleep time from hours worked.
In the Field Assistance Bulletin live-in employees are defined as, “employees who reside at their worksites, and in particular, live-in domestic service employees, i.e., employees who reside at the private homes in or about which they provide household services. An employee is deemed to reside at her worksite if she lives there on a “permanent basis,” i.e., stays there seven nights a week and has no other home, or for “extended periods of time,” i.e., works and sleeps there for five days a week (120 hours or more) or five consecutive days or nights (regardless of the total number of hours).”
The Bulletin continues with defining why sleep time may be excluded. “Employers of live-in employees, including live-in domestic service employees, may exclude sleep time from those employees’ hours worked provided certain conditions are met: (1) the employer and employee have a reasonable agreement to exclude sleep time, and (2) the employer provides the employee “private quarters in a homelike environment.” It further clarifies the terms reasonable agreement and private quarters in a homelike environment.
The DOL guidance documents clarifies shifts of 24 hours or more as those employees who don’t qualify as “live-in” employees. “An employer may exclude the employee’s sleep time from hours worked if certain requirements —similar to but distinct from those for live -in employees are met. The requirements are that (1) the employee be provided “adequate sleeping facilities,” (2) she “can usually enjoy an uninterrupted night’s sleep,” and (3) the parties have an “expressed or implied agreement” to exclude the sleep time.” The bulletin defines adequate sleeping facilities, usually enjoy an interrupted night’s sleep, and expressed or implied agreement.
LeadingAge New York previously conducted a Companionship Exemption webinar in Oct. 2015, which covered a lawsuit that argued that “24 hour live-in cases” should be paid for every hour worked (Andryeyeva v. New York Home Attendant Agency). We submitted an amicus brief on this particular case. Currently in New York, as outlined by the Department of Health, it is permissible to pay employees for 13 hours of a 24-hour shift, provided that the employee is afforded eight hours of sleep (with at least five hours being uninterrupted) and three uninterrupted hours for meals.
It is important to understand the federal definitions of “live-in employees,” and shifts of 24 hours or more under the FLSA and New York’s understanding of 24 hour live-in cases. The chart in the back of the Bulletin, the case examples and the FAQs are helpful in making this distinction.
We will continue to advocate for clarity between the federal and state interpretations of excluding sleep time under FLSA.
Contact: Cheryl Udell, cudell@leadingageny.org, 518-867-8871