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  • FLSA law question California

    this is coped from FLSA law:
    Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken.


    please help me with this as i have ongoing issues about my employer, my job is a caregiver in a residential care facility for the elderly. my questions are these:

    1. on the above law on the last sentence, does it means 5 hours of uninterrupted/continous sleep? for example, i sleep for 4 hours then a wake up to assist a patient, then i return to bed, and got another 4 hours of sleep, based on the above law, is that sleeping time can be excluded from hours worked if im on duty for 24 hours?

    2. if we don't have an agreement with my employer, and i've got an at least 5 hours of continous/uninterrupted sleep, can she just automatically deduct that sleeping time from the hours worked?
    thanks in advance, your response will be greatly apreciated.

  • #2
    Your quote is actually from the 29 CFR 785.22 regulation and not the FLSA law itself The regulation was issued in response to the 1940s court ruling cited in the regulation.

    I briefly read the court decision and the 5 hour rule is not specifically mentioned in that court decision. The original decision were basically firemen with the alarm waking up the entire night shift, but whom did not always deploy everyone. Meaning some people went back to sleep. There is nothing in that court decision indicating the continuous sleep was a requirement. I then took a look at my law book on FLSA, which has four pages on the sleeping at work regulation. The law book mentioned the 5 hour rule, but did not mention any contiguous requirement. I am not saying that there is not some court decision somewhere that thinks such a requirement should not exist, but the ABA did not feel a need to mention it in their law book.

    The regulation and the law book both talk about an "express or implied consent" requirement. Maybe too late in my day, but I read the section several times and do not understand the point the book is trying to make. I understand that FLSA considers this to be an important issue, but the line between consent and no consent seems non-obvious. Sorry, but this is not something I know off the top of my head, I have already put 40 minutes into this, and I am not up to reading more court cases on a subject that I really do not care about the answer to. There is perhaps a limit to just how much free research you can get online. If you key word search the regulation reference, "consent" plus "court cases" and read all the related court cases, this would probably give you the answer to the second question. You could perhaps do something similar with your first question, just use different key words.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

    Comment


    • #3
      i really apreciate that you spend some of your time to help someone like me. but that quote really came from FLSA and it is titled "Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA)", from DOL WHD website.



      U.S. Department of Labor
      Wage and Hour Division
      (Revised July 2008)

      Fact Sheet #22: Hours Worked Under the Fair Labor Standards Act (FLSA)
      This fact sheet provides general information concerning what constitutes compensable time under the FLSA. The Act requires that employees must receive at least the minimum wage and may not be employed for more than 40 hours in a week without receiving at least one and one-half times their regular rates of pay for the overtime hours. The amount employees should receive cannot be determined without knowing the number of hours worked.

      Definition of "Employ"
      By statutory definition the term "employ" includes "to suffer or permit to work." The workweek ordinarily includes all time during which an employee is necessarily required to be on the employer's premises, on duty or at a prescribed work place. "Workday", in general, means the period between the time on any particular day when such employee commences his/her "principal activity" and the time on that day at which he/she ceases such principal activity or activities. The workday may therefore be longer than the employee's scheduled shift, hours, tour of duty, or production line time.

      Application of Principles
      Employees "Suffered or Permitted" to work: Work not requested but suffered or permitted to be performed is work time that must be paid for by the employer. For example, an employee may voluntarily continue to work at the end of the shift to finish an assigned task or to correct errors. The reason is immaterial. The hours are work time and are compensable.

      Waiting Time: Whether waiting time is hours worked under the Act depends upon the particular circumstances. Generally, the facts may show that the employee was engaged to wait (which is work time) or the facts may show that the employee was waiting to be engaged (which is not work time). For example, a secretary who reads a book while waiting for dictation or a fireman who plays checkers while waiting for an alarm is working during such periods of inactivity. These employees have been "engaged to wait."
      On-Call Time: An employee who is required to remain on call on the employer's premises is working while "on call." An employee who is required to remain on call at home, or who is allowed to leave a message where he/she can be reached, is not working (in most cases) while on call. Additional constraints on the employee's freedom could require this time to be compensated.

      Rest and Meal Periods: Rest periods of short duration, usually 20 minutes or less, are common in industry (and promote the efficiency of the employee) and are customarily paid for as working time. These short periods must be counted as hours worked. Unauthorized extensions of authorized work breaks need not be counted as hours worked when the employer has expressly and unambiguously communicated to the employee that the authorized break may only last for a specific length of time, that any extension of the break is contrary to the employer's rules, and any extension of the break will be punished. Bona fide meal periods (typically 30 minutes or more) generally need not be compensated as work time. The employee must be completely relieved from duty for the purpose of eating regular meals. The employee is not relieved if he/she is required to perform any duties, whether active or inactive, while eating.

      Sleeping Time and Certain Other Activities: An employee who is required to be on duty for less than 24 hours is working even though he/she is permitted to sleep or engage in other personal activities when not busy. An employee required to be on duty for 24 hours or more may agree with the employer to exclude from hours worked bona fide regularly scheduled sleeping periods of not more than 8 hours, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. No reduction is permitted unless at least 5 hours of sleep is taken.

      Lectures, Meetings and Training Programs: Attendance at lectures, meetings, training programs and similar activities need not be counted as working time only if four criteria are met, namely: it is outside normal hours, it is voluntary, not job related, and no other work is concurrently performed.
      Travel Time: The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

      Home to Work Travel: An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.
      Home to Work on a Special One Day Assignment in Another City: An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

      Travel That is All in a Day's Work: Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.
      Travel Away from Home Community: Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee's workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the Division will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

      Typical Problems
      Problems arise when employers fail to recognize and count certain hours worked as compensable hours. For example, an employee who remains at his/her desk while eating lunch and regularly answers the telephone and refers callers is working. This time must be counted and paid as compensable hours worked because the employee has not been completely relieved from duty.
      Where to Obtain Additional Information

      For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243). This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
      U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210
      1-866-4-USWAGE
      TTY: 1-866-487-9243Contact Us
      Last edited by ghostrider85; 07-04-2011, 08:59 PM.

      Comment


      • #4
        This is the text of FLSA:

        http://www.dol.gov/whd/regs/statutes...orStandAct.pdf

        This is the Code of Federal Regulations that implemented and interpreted that act passed by Congress.

        http://www.dol.gov/dol/cfr/Title_29/Chapter_V.htm

        There's a difference. What you've quoted is from Section 785 of the CFR, not the Act itself.
        I am not able to respond to private messages. Thanks!

        Comment


        • #5
          And the factsheet is apparently quoting from the regulation. The part 785 are the "hours worked" regulations. The regulation as written is not sufficiently specific to answer the questions asked. Meaning that related court and administrative decisions would need to be reviewed. The court decisions are more likely to be available on line then are the administrative decisions. plus are legally more "authoritative" then the administrative decisions.
          "Reality is that which, when you stop believing in it, doesn't go away".
          Philip K. **** (1928-1982)

          Comment


          • #6
            so that qoute isn't applicable to us then?

            Comment


            • #7
              The only thing I could find in the DLSE manual (California Dept of Labor) pertained to ambulance drivers and attendants. Unfortunately, it would not apply in your case.

              http://www.dir.ca.gov/dlse/DLSEManua...enfcmanual.pdf

              50.9.8.2 The provision for ambulance drivers and attendants was adopted by the IWC many
              years ago based on provisions in the federal law. The federal proviso at 29 CFR
              § 785.22 provides, inter alia:
              (a) Where an employee is required to be on duty for 24 hours or more, the employer and the
              employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled
              sleeping period of not more than 8 hours from hours worked, provided adequate sleeping
              facilities are furnished by the employer and the employee can usually enjoy an uninterrupted
              night’s sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where
              no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and
              lunch periods constitute hours worked.
              (b) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption
              must be counted as hours worked. If the period is interrupted to such an extent that the
              employee cannot get a reasonable night’s sleep, the entire period must be counted. For
              enforcement purposes, the Divisions have adopted the rule that if the employee cannot get at
              least 5 hours’ sleep during the scheduled period the entire time is working time.”
              50.9.8.3 Based on the above, the former DIW (Division of Industrial Welfare)

              Comment


              • #8
                The quote is "applicable", but it does not answer your questions. Past that point, the quote is just DOL paraphrasing the regulation. Which also does not answer your question. Your questions involve points not specifically addressed in the regulation (or the factsheet). The only real answer would involve someone spending some hours researching related court decisions to see if the courts have addressed your points.

                I understand that this is not the answer that you are looking for.
                "Reality is that which, when you stop believing in it, doesn't go away".
                Philip K. **** (1928-1982)

                Comment


                • #9
                  i also found this article at:
                  http://ecfr.gpoaccess.gov/cgi/t/text...1.1.2.44.3.435,
                  and i think this one defined everything, give me some opinions about this,


                  § 785.21 Less than 24-hour duty.

                  An employee who is required to be on duty for less than 24 hours is working even though he is permitted to sleep or engage in other personal activities when not busy. A telephone operator, for example, who is required to be on duty for specified hours is working even though she is permitted to sleep when not busy answering calls. It makes no difference that she is furnished facilities for sleeping. Her time is given to her employer. She is required to be on duty and the time is worktime. ( Central Mo. Telephone Co. v. Conwell, 170 F. 2d 641 (C.A. 8, 1948); Strand v. Garden Valley Telephone Co., 51 F. Supp. 898 (D. Minn. 1943); Whitsitt v. Enid Ice & Fuel Co., 2 W. H. Cases 584; 6 Labor Cases para. 61,226 (W.D. Okla. 1942).)

                  § 785.22 Duty of 24 hours or more.

                  (a) General. Where an employee is required to be on duty for 24 hours or more, the employer and the employee may agree to exclude bona fide meal periods and a bona fide regularly scheduled sleeping period of not more than 8 hours from hours worked, provided adequate sleeping facilities are furnished by the employer and the employee can usually enjoy an uninterrupted night's sleep. If sleeping period is of more than 8 hours, only 8 hours will be credited. Where no expressed or implied agreement to the contrary is present, the 8 hours of sleeping time and lunch periods constitute hours worked. ( Armour v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944); General Electric Co. v. Porter, 208 F. 2d 805 (C.A. 9, 1953), cert. denied, 347 U.S. 951, 975 (1954); Bowers v. Remington Rand, 64 F. Supp. 620 (S.D. Ill, 1946), aff'd 159 F. 2d 114 (C.A. 7, 1946) cert. denied 330 U.S. 843 (1947); Bell v. Porter, 159 F. 2d 117 (C.A. 7, 1946) cert. denied 330 U.S. 813 (1947); Bridgeman v. Ford, Bacon & Davis, 161 F. 2d 962 (C.A. 8, 1947); Rokey v. Day & Zimmerman, 157 F. 2d 736 (C.A. 8, 1946); McLaughlin v. Todd & Brown, Inc., 7 W.H. Cases 1014; 15 Labor Cases para. 64,606 (N.D. Ind. 1948); Campbell v. Jones & Laughlin, 70 F. Supp. 996 (W.D. Pa. 1947).)

                  (b) Interruptions of sleep. If the sleeping period is interrupted by a call to duty, the interruption must be counted as hours worked. If the period is interrupted to such an extent that the employee cannot get a reasonable night's sleep, the entire period must be counted. For enforcement purposes, the Divisons have adopted the rule that if the employee cannot get at least 5 hours' sleep during the scheduled period the entire time is working time. (See Eustice v. Federal Cartridge Corp., 66 F. Supp. 55 (D. Minn. 1946).)

                  Comment

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