1.3 FLSA Hours Worked, Travel Time, On-Call & Waiting Time
Key Takeaways
- Under the FLSA, 'employ' means to suffer or permit to work; all time spent performing activities for the benefit of the employer with the employer's knowledge is compensable hours worked.
- The Portal-to-Portal Act of 1947 establishes that ordinary commute time and preliminary/postliminary activities are non-compensable unless they are integral and indispensable to principal work activities.
- Waiting time is compensable when the employee is 'engaged to wait' (unable to use time effectively for personal pursuits), but non-compensable when 'waiting to be engaged' during a definite, bona fide release period.
- On 24-hour shifts, an employer and employee may agree to exclude up to 8 hours of sleeping time, provided adequate facilities are provided and the employee obtains at least 5 hours of continuous, uninterrupted sleep.
- Overnight travel away from home is compensable hours worked during time windows corresponding to the employee's regular working hours, across all seven days of the week, even as a passenger.
FLSA Hours Worked, Travel Time, On-Call & Waiting Time
Accurately calculating total hours worked in each workweek is the essential prerequisite for ensuring minimum wage and overtime compliance under the Fair Labor Standards Act (FLSA), codified at 29 U.S.C. § 201 et seq. and regulated by the Department of Labor (DOL) Wage and Hour Division (WHD).
Under FLSA regulations (29 C.F.R. Part 785), employers must track and compensate all hours that an employee is "suffered or permitted to work," regardless of where the work is performed or whether it was formally requested.
1. The "Suffer or Permit to Work" Principle
Under 29 U.S.C. § 203(g), "employ" includes to suffer or permit to work. If an employer knows or has reason to believe that a non-exempt employee is performing work for the benefit of the business, the time spent is compensable hours worked.
+-----------------------------------------------------------------------------+
| "SUFFER OR PERMIT TO WORK" EXAMPLES |
| |
| - An employee begins working 15 minutes before the official shift starts |
| to set up workstation machinery. |
| - An employee reviews and responds to work emails at home on a smartphone |
| during evenings or weekends. |
| - An employee corrects payroll processing errors during an unpaid lunch. |
| |
| ===> ALL ARE COMPENSABLE HOURS WORKED THAT MUST BE RECORDED AND PAID. |
+-----------------------------------------------------------------------------+
[!WARNING] Prohibiting Overtime Does Not Eliminate Payment Obligations: A company policy stating "No overtime work is permitted without prior written managerial approval" does not relieve the employer of the legal obligation to pay for unauthorized overtime. If the employee performed the work, the employer must pay for the hours worked at statutory overtime rates. The employer's sole legal recourse is internal administrative discipline for policy non-compliance.
2. The Portal-to-Portal Act & Continuous Workday Doctrine
Enacted in 1947, the Portal-to-Portal Act (29 U.S.C. § 254) amended the FLSA to clarify that employers are not required to compensate employees for:
- Walking, riding, or traveling to and from the actual place of performance of the principal activity (normal home-to-work commuting).
- Activities which are preliminary (before) or postliminary (after) the principal activity, unless compensated by contract, custom, or practice.
+-----------------------------------------------------------------------------+
| THE CONTINUOUS WORKDAY FRAMEWORK |
| |
| [Home] |
| | |
| v (Ordinary Commute - NON-COMPENSABLE) |
| [Worksite Arrival] |
| | |
| v (First Principal Activity: e.g., Donning Specialized PPE) |
| [=== CONTINUOUS WORKDAY BEGINS ===] <--- All intermediate time is paid |
| | - Core Production Work except bona fide meal periods |
| | - Travel Between Job Sites |
| | - Standby & Waiting Time |
| v (Last Principal Activity: e.g., Doffing Specialized PPE / Cleaning) |
| [=== CONTINUOUS WORKDAY ENDS ===] |
| | |
| v (Ordinary Commute - NON-COMPENSABLE) |
| [Home] |
+-----------------------------------------------------------------------------+
Principal Activities and "Integral and Indispensable"
Activities performed before or after the regular work shift are principal activities (and therefore fully compensable) if they are an integral and indispensable part of the employee's principal duties:
- Donning and Doffing Gear (Steiner v. Mitchell / IBP, Inc. v. Alvarez): Changing into and out of specialized, unique protective equipment (e.g., heavy chemical suits, cut-resistant chainmail armor for meatpackers) at the employer's premises is compensable. Putting on standard generic uniforms, safety glasses, or hard hats is generally non-compensable preliminary/postliminary activity.
- Pre-Shift Preparations: Warming up specialized utility trucks, sharpening meatpacking knives, or booting up required call-center software applications before answering calls are compensable principal activities.
The FLSA De Minimis Rule (29 C.F.R. § 785.47)
Under the de minimis rule, insubstantial or insignificant periods of time outside scheduled working hours (a few seconds or 1 to 2 minutes) that cannot, as a practical administrative matter, be precisely recorded may be disregarded. However, where an activity takes 5 to 15 minutes regularly, it is never de minimis and must be tracked and compensated.
3. Waiting Time: "Engaged to Wait" vs. "Waiting to Be Engaged"
Whether waiting time constitutes compensable hours worked depends entirely on whether the employee was engaged to wait or waiting to be engaged (29 C.F.R. §§ 785.14–785.16).
+-----------------------------------------------------------------------------+
| WAITING TIME CLASSIFICATION SPECTRUM |
| |
| ENGAGED TO WAIT (Compensable) WAITING TO BE ENGAGED (Unpaid) |
| --------------------------------- ------------------------------ |
| - Waiting is integral to job. - Completely relieved from duty. |
| - Time controlled by employer. - Definite, predetermined duration.|
| - Employee cannot use time freely. - Long enough for personal use. |
| - Unpredictable, short intervals. - Free to leave the premises. |
| |
| *Example:* Receptionist reading *Example:* Driver given a clear |
| a book between customer visits. 4-hour release in town until 5 PM. |
+-----------------------------------------------------------------------------+
| Classification | Legal Standard & Operating Conditions | Compensability |
|---|---|---|
| Engaged to Wait | Short, unpredictable idle periods spent on duty; employee cannot leave or pursue personal matters effectively (e.g., machine breakdown delays, messenger waiting for next delivery). | Compensable Hours Worked |
| Waiting to Be Engaged | Employee is completely relieved from all duties for a definite, specified duration long enough to pursue personal activities freely, and informed of the exact resumption time. | Non-Compensable (Unpaid) |
4. On-Call Time Compensation Standards
Under 29 C.F.R. § 785.17, the compensability of on-call time depends upon the degree of restriction placed upon the employee's personal freedom.
+-----------------------------------------------------------------------------+
| ON-CALL COMPENSABILITY SPECTRUM |
| |
| [HIGH RESTRICTION: COMPENSABLE] [LOW RESTRICTION: UNPAID ON-CALL] |
| - Must remain on employer premises. - Carry mobile phone / pager. |
| - Severe geographic radius (5-10 min). - Reasonable response time (45m). |
| - Highly frequent calls (3-5 / hour). - Infrequent call disruptions. |
| - Cannot engage in personal activities. - Free to pursue personal errands.|
| *Only actual work time is paid.* |
+-----------------------------------------------------------------------------+
Determinative On-Call Factors:
- Geographic and Response Time Constraints: A requirement to respond physically within 10–15 minutes severely restricts personal freedom (pointing toward compensability), whereas a 45–60 minute window allows personal pursuits.
- Frequency of Calls: If an employee is called back multiple times per hour, the cumulative disruption prevents any meaningful personal activity, rendering the entire on-call period compensable.
- Use of Time: If the employee can eat, sleep, shop, attend family events, and move about freely, the standby time is non-compensable, and the employer pays only for actual time spent responding to service calls.
5. Sleep Time Rules (29 C.F.R. §§ 785.21–785.22)
FLSA regulations divide sleep time rules based on whether the scheduled duty shift is less than 24 hours or 24 hours and greater:
+-----------------------------------------------------------------------------+
| SLEEP TIME COMPLIANCE MATRIX |
| |
| Shift Duration Permitted Exclusions & Regulatory Requirements |
| ------------------- -------------------------------------------------- |
| Shifts < 24 Hours NO sleep time deduction permitted. All hours on |
| duty are compensable, even if employee sleeps. |
| Shifts ≥ 24 Hours Up to 8 hours sleep exclusion permitted ONLY IF: |
| 1. Express written agreement exists. |
| 2. Adequate, private sleeping facilities furnished. |
| 3. Employee can get at least 5 hours continuous sleep|
+-----------------------------------------------------------------------------+
The Critical 5-Hour Continuous Sleep Rule
When an employer excludes up to 8 hours of sleep time on a 24+ hour shift:
- Any interruption to perform work duties is compensable hours worked.
- If interruptions prevent the employee from getting at least 5 hours of continuous, uninterrupted sleep, the entire 8-hour sleep period becomes compensable hours worked.
6. FLSA Travel Time Rules & Decision Framework
Travel time compensation under 29 C.F.R. §§ 785.35–785.41 depends upon the type, timing, and destination of the travel:
+-----------------------------------------------------------------------------+
| FLSA TRAVEL TIME CATEGORIES |
| |
| 1. ORDINARY COMMUTE (Home to Work) |
| - Non-compensable, regardless of distance or fixed/variable worksite. |
| |
| 2. SPECIAL ONE-DAY ASSIGNMENT IN ANOTHER CITY |
| - Compensable travel time, MINUS the employee's usual commute time. |
| |
| 3. TRAVEL ALL IN A DAY'S WORK (Between Job Sites) |
| - 100% compensable hours worked throughout the scheduled workday. |
| |
| 4. OVERNIGHT TRAVEL AWAY FROM HOME |
| - Compensable when it cuts across REGULAR WORKING HOURS. |
| - Applies on BOTH regular workdays AND regular non-working days (Sat). |
| - Travel as a passenger outside regular hours = UNPAID. |
| - Time spent DRIVING a vehicle = COMPENSABLE at all hours. |
+-----------------------------------------------------------------------------+
Overnight Travel Rules (29 C.F.R. § 785.39)
When a non-exempt employee travels away from home overnight:
- Regular Working Hours Window: Travel that occurs during the hours corresponding to the employee's regular workday (e.g., 9:00 AM to 5:00 PM) is compensable hours worked.
- Applies to Non-Working Days: The same regular hours window applies to corresponding hours on non-working days (e.g., 9:00 AM to 5:00 PM on Saturday and Sunday).
- Passenger vs. Driver:
- Passenger: Travel time outside regular working hours as a passenger on an airplane, train, bus, or car is non-compensable (unpaid), provided no work is performed.
- Driver: An employee required to drive a vehicle is performing physical work; all driving time is 100% compensable, regardless of whether it falls within or outside regular hours.
7. Step-by-Step Computational Travel Scenarios
Scenario 1: Special One-Day Assignment in Another City
An employee whose regular work hours are 8:00 AM to 4:30 PM has a normal daily round-trip commute of 40 minutes (20 minutes each way). The employer sends the employee on a special one-day assignment to another city:
- Departs home at 6:00 AM, arrives at client site at 9:00 AM (3 hours travel).
- Works at client site from 9:00 AM to 4:00 PM (7 hours work, including 30-minute unpaid lunch → 6.5 hours work).
- Departs client site at 4:00 PM, arrives home at 7:00 PM (3 hours travel).
+-----------------------------------------------------------------------------+
| SPECIAL ONE-DAY TRAVEL CALCULATION BREAKDOWN |
| |
| Gross Travel Time: 6.0 hours (3.0 hrs morning + 3.0 hrs evening)|
| Less Normal Commute Offset: -0.67 hours (40 minutes round-trip commute) |
| Net Compensable Travel: 5.33 hours (5 hours 20 minutes) |
| Actual On-Site Work: +6.50 hours |
| ----------------------------------------------------------------------- |
| TOTAL COMPENSABLE HOURS: 11.83 hours (11 hours 50 minutes) |
+-----------------------------------------------------------------------------+
Scenario 2: Overnight Travel as a Passenger on a Non-Working Day
An employee's regular schedule is Monday through Friday, 8:30 AM to 5:00 PM (with a 30-minute unpaid lunch from 12:00 PM to 12:30 PM). On Saturday (a normal day off), the employer flies the employee to a national convention:
- Employee boards flight at 10:00 AM and lands at destination at 7:00 PM (total travel time = 9.0 hours).
- The employee travels strictly as a passenger and performs no work while flying.
+-----------------------------------------------------------------------------+
| OVERNIGHT PASSENGER TRAVEL (SATURDAY) ANALYSIS |
| |
| Total Travel Window: 10:00 AM to 7:00 PM (9.0 total hours) |
| |
| 1. Regular Workday Window (8:30 AM to 5:00 PM): |
| - Travel from 10:00 AM to 5:00 PM = 7.0 hours |
| - Less 30-minute regular meal period = -0.5 hours |
| - Compensable Travel = 6.5 hours |
| |
| 2. Outside Regular Hours Window (5:00 PM to 7:00 PM): |
| - Travel as passenger outside regular hours = 0.0 hours (UNPAID) |
| |
| TOTAL COMPENSABLE HOURS WORKED ON SATURDAY: 6.5 Hours |
+-----------------------------------------------------------------------------+
A non-exempt employee regularly works Monday through Friday from 8:00 AM to 4:30 PM (with a 30-minute unpaid lunch). On Sunday, the employer sends the employee on an overnight business trip as an airline passenger. The flight departs at 1:00 PM and arrives at 6:30 PM. The employee performs no work duties while traveling. How many hours must be compensated as hours worked on Sunday?
An emergency repair technician is assigned to a 24-hour shift under an express agreement excluding 8 hours of sleep time in furnished employer quarters. During the night, the technician is awakened three separate times to perform urgent repairs totaling 4 hours of active work, leaving the longest uninterrupted block of sleep at 3.5 hours. How many total hours must be paid for the 24-hour shift?
A non-exempt employee with a daily round-trip commute of 30 minutes (15 minutes each way) is sent on a special one-day assignment to another city, returning home the same evening. The morning travel takes 2.5 hours, on-site work is 6.0 hours, and evening return travel takes 2.5 hours. What are the total compensable hours worked for the day?