• Do I Have to Pay My Employees to Sleep?
  • October 27, 2016 | Author: Michael John Neary
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • In June, the Supreme Court refused to hear the Home Care Association of America’s challenge to the Department of Labor’s (DOL) final rule requiring third-party providers of home care services to pay minimum wage and overtime wages to employees providing domestic companionship services.

    Around that time, the DOL released guidance on the exclusion of sleep time from hours worked by these employees. I chuckled at the timing because since the DOL proposed revising the “companionship exemption” in 2011, the number one question I received from my home care clients was: “Do I now have to pay my employees to sleep?”

    The state and federal laws that answer this question are not very clear. DOL stepped into the void when it released Field Assistance Bulletin No. 2016-1 earlier this year. The bulletin is not law, but it does set forth DOL’s view on when home care companies must pay their domestic service employees to sleep. The bulletin divides employees into three groups: employees who reside in the client’s home, employees who work shifts of 24 hours or more, and employees whose shift is less than 24 hours.

    Live-In Employees

    Employers of live-in employees can exclude sleep time if the employer and employee have a reasonable agreement to exclude sleep time and the employer provides the employee “private quarters in a home like environment.”

    According to DOL, a reasonable agreement is one where the employer and employee mutually agree on the terms and typically memorialize their agreement in writing. The agreement should account for the specific reality of a particular living arrangement. As for the “private quarters” requirement, DOL believes a private bedroom with access to a kitchen and bathroom (even if shared with the homeowner) usually suffices. DOL left open the possibility that sleeping arrangements short of a private bedroom could satisfy the “private quarters” requirement in narrow circumstances.

    Shifts of 24 Hours or More

    The rules for employees working shifts of 24 hours or more are similar to the live-in rules. Employers of these employees can exclude sleep time if the employee has adequate sleeping facilities, can usually enjoy an uninterrupted sleep (at least five hours), and the employee and employer have an agreement to exclude the sleep time. The sleeping facilities for these employees do not need to be as private as the facilities required for live-in employees. Usually, access to basic sleeping amenities (bed and linens) and access to basic shared bathroom and kitchen facilities will suffice.

    Shifts of Less than 24 Hours

    Employers must pay domestic services employees for sleep time if they work shifts less than twenty-four hours. For instance, if an employee works a 7 pm to 7 am shift and can sleep during that period provided they can respond as needed to the client, the employer must pay the employee for the full twelve hours even if the employee sleeps during that time.

    Limitations

    Employers can only set aside up to 8 hours as sleep time in accordance with the above rules. If the client calls the employee to duty during the traditional sleep-time hours, the employer must compensate the employee for time called to duty. And, if the time during the sleep period when the employee is called to duty prevents the employee from getting at least five hours of sleep, the employer must pay the employee for the entire sleep period.

    Conclusion

    Even after the DOL bulletin, the rules regarding when home care employers must pay domestic service employees to sleep depend on the facts and circumstances of each employee’s situation. Home Care employers seeking to exclude sleep time as a matter of course should:

    • Consider whether the federal rules will satisfy the specific requirements of any applicable state or local wage and hour law.
    • Create individualized agreements for each eligible employee taking into account the specific circumstances of individualized work arrangements.
    • Adopt policies allowing employees to report hours worked during traditional sleep periods.
    • Communicate with employees to make sure sleep arrangements continue to reflect the reality of the work environment as the needs of clients change.