Last week, the U.S. Department of Labor issued new guidance to its field staff to clarify the rules regarding when employers of domestic service employees may exclude sleep time from hours worked.
For sleep time to be excluded for live-in staff, the DOL requires:
- A reasonable agreement: The employer and employee must have an agreement that “reflect[s] the realities” of the working arrangement, such as whether the employee is regularly able to sleep overnight. This agreement “should normally be in writing.”
- Private Quarters in a home-like environment: Employees must generally be provided “a living and sleeping space that is separate from the person receiving services … and other employees.” However, what constitutes such a space depends on the relationship between the caregiver and the client and the nature of the site where services are provided. “A home-like environment” requires that employees have access to facilities for cooking and eating, a bathroom, and a space for recreation—though these facilities may be shared.
To exclude sleep time for employees who are not living staff, but who work shifts of 24 hours or more, the DOL requires:
- Adequate sleeping facilities: The adequacy of these facilities may vary depending on the context of the work, but in most circumstances, employees must have “access to basic sleeping amenities, such as bed and linens; reasonable standards of comfort; and basic bathroom and kitchen facilities (which may be shared).”
- Employee must usually enjoy an uninterrupted night’s sleep: The employee must usually have least five consecutive hours of uninterrupted time during which they can sleep. An employee is “usually” provided five hours of uninterrupted time if job-related interruptions “occur less than half the time.”
- An express or implied agreement: The employer and employee must have an agreement to exclude sleeping hours from time worked, but the existence of such an agreement may be inferred from the conduct of the parties.
If these requirements are met, employers may exclude a maximum of eight hours of sleep time in each 24-hour period worked, though additional limitations apply depending on the nature of the employee’s work arrangement.
Notwithstanding these rules, employees still must be compensated for all hours in which they actually perform duties, regardless of whether the work is performed during hours that would otherwise be considered sleeping time. Other limitations may apply.
Please contact an MSEC attorney if you have additional questions.