Which Hours Must Employers Count as Work Time?

As a business owner you hire employees to work and in return compensate them for their time and effort. So, which hours must you count as work time for employees? At first glance, this sounds like a silly question, but it's not. In this article, we'll look at times when you must pay an employee for working.

Why Is It Important to Calculate Work Time?

An important reason for calculating work time accurately is for payment of overtime to employees that meet overtime pay criteria. If a non-exempt employee works more than 40 hours in a workweek, he or she must be paid overtime at a rate of 1 1/2 times, per the Fair Labor Standards Act (FSLA) enforced by the Department of Labor (DOL). This includes all non-exempt employees who paid an hourly rate and any lower-paid exempt employees who are entitled to overtime.

What Is "Suffered or Permitted to Work?"

The central question, according to the Department of Labor, is whether the employee is "suffered or permitted to work."

According to the DOL, the term "suffer or permitted to work" means that if you as an employer allow but don't prevent an employee from working, the time spent is generally considered to be hours worked. Even if you didn't request that the employee work and the employee voluntarily to work, you have allowed the work and you must pay the employee for this work. If you know or have reason to know or have reason to believe that the employee is continuing to work, you (the employer) are benefiting from the work being done.

Here's an example: An administrative assistant is at home with a cold, but he continues to check work email and respond to emails. If the boss permits the admin to do this, it's work time and should be counted towards overtime. 

What Counts as Work Time?

 An employee is considered to be working: 

• While doing rework (correcting mistakes), even if done voluntarily
• While waiting for work, whether or not the employee has work to do while waiting, called, "engaged to wait," that is, required to wait 
• For all of the worker's time at the place of work, including the employer's workplace or other designated place
• If the employee is required to be on-call while at the employer's workplace, but not at home (unless other restrictions are imposed)
• During short rest breaks, if within the employer's designated length or if the employee extends a break without permission

Other circumstances

• If a salesperson is traveling from the office to a client's office, is that work time? 
• If an employee answers a work-related cell phone call while they are at home, is that work time? 
• If an employee is allowed to eat at their desk, answering phone calls while eating, is that work time 

The answer in all three cases is "Yes."

Lectures, Meetings, and Training Programs

Employee attendance at business events must be counted as work time if: 

• It's within normal business hours
• It's not voluntary
• It's job-related

If the time is outside work time, it's voluntary, it's not job-related, and no other work is performed at the same time, these meetings are not considered work time. 

Sleeping Time as Work Time

An employee is required to work for less than 24 hours, sleep time counts as work time, If an employee must be on duty more than 24 hours, the employee and employer can agree to exclude a certain amount of sleep time. 

Travel Time as Work Time

Whether travel time counts as work time depends on the circumstances. Time spent commuting to and from work on a regular basis is not paid work time. However, if travel is a part of doing your job or an assignment requires an employee to travel then you may have to compensate the employee for travel time.

What About Work Time and Salaried Employees? 

Most salaried employees are paid based on an annual salary. The number of hours they work doesn't have any relationship to their payments. Salaried employees work to get the job done, however many hours it takes. In other words, these salaried employees are considered to be "exempt" from overtime. Some weeks, a salaried employee may work 40 hours, some weeks 32 hours, some weeks 60 hours; it all depends on what is required to do the job. 

An employee is considered to be exempt from overtime if:

• They are salaried, with a predetermined and fixed salary that's not dependent on the quality or quantity of work they do
• They have executive, administrative, or professional duties as their primary work

For these employees, the work time rules described above do come into play. You can't give them comp time (time off instead of overtime) or bonuses/special payments. Read more about the rules for exempt employee overtime pay.

Frequently Asked Questions (FAQs)