Time to Revisit What is Considered "Hours Worked"
As we know, in Arizona paid sick leave (PSL) accrues based on hours worked. Lately, I have been getting a lot of questions about what really counts as “hours worked.” So, I thought it was time to revisit this topic.
The rules for Arizona’s minimum wage and PSL state that hours worked means “all hours for which an employee is employed and required to give to the employer, including all time during which an employee is on duty or at a prescribed work place and all time the employee is suffered or permitted to work.” Regulations under the Fair Labor Standards Act (FLSA) state that “as a general rule hours worked will include: (a) all time during which an employee is required to be on duty or to be on the employer’s premises or at a prescribed workplace and (b) all time during which an employee is suffered or permitted to work whether or not he is required to do so.” Notice that the Arizona rules definition is very similar to that under the FLSA. Let’s explore this further. It is important to note that I will only be addressing “hours worked” under federal law, which is what we generally follow in Arizona, and this can differ from state law in other states such as California.
First and foremost, hours worked does not include days off such as vacation, sick and holidays. I know your employees may think otherwise! In addition, if an employee works unauthorized overtime the overtime is still considered hours worked and must be compensated. For example, an employee who voluntarily continues to work beyond the end of their shift must be compensated for that time.
Hours worked can include time when the employee is not engaged in active productive work but is idle. This can include time spent waiting for work, being “on-call”, traveling on Company business or to and from workplaces, and meal and rest periods. Let’s touch on each of these. Whether waiting time is considered hours worked is dependent on the specific circumstances. If the facts show that an employee was engaged to wait then this is considered hours worked. Whereas if the facts show that an employee was waiting to be engaged then this is not considered hours worked. For example, an office admin reading a book while she waits to meet with her boss is engaged to wait. Thus, the time she spends reading is counted as work time.
When it comes to whether or not “on-call” time is counted as hours worked, it is going to come down to the specific facts of the situation. The general rule is that an employee who is required to remain “on-call” on the employer’s premises or so close that he or she cannot use the time for their own purposes is considered to be working while “on-call”. Whereas an employee who can be at home, or who is allowed to leave a message where they can be reached, is generally considered to not be working. The more constraints on the employee’s freedom will shift the “on-call” time to be counted as hours worked.
Rest periods generally are anywhere from 5 to 20 minutes in length and are counted as hours worked. Meal periods are not counted as hours worked only if they meet the following criteria: (1) the employee must be completely relieved of all duty; and (2) it is 30 or more minutes in length.
Another common question is whether or not to count the time an employee spends attending a seminar as hours worked. The rules state that attendance at lectures, meetings, training programs and similar activities need not be counted as hours worked if all the following criteria are met:
Attendance is outside the employee’s regular working hours;
Attendance is in fact voluntary;
The course, lecture or meeting is not directly related to the employee’s job; and
The employee does not perform any productive work during the session.
If the situation does not meet all four criteria then the time spent in attendance is counted as hours worked.
Employees traveling has generated much frustration for employers when trying to determine hours worked. It is going to be very dependent on the type of travel that is involved and will require an extensive discussion which is beyond what is allowed in this post. However, I will briefly touch on it. Generally, the employee’s travel between home and the office is not considered hours worked as this is the employee’s regular commute. Also, all time the employee spends traveling between job sites, running errands, visiting clients, etc. throughout the day is considered hours worked. Other situations where an employee travels out of town or travel overnight are very fact specific.
There are special rules that apply for employees that are required to sleep on premises. In general, an employee who is required to be on duty for less than 24 hours is working even though they may be permitted to sleep 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 and the employee is generally not interrupted when sleeping.
There has been much litigation around what is considered hours worked. Whenever in doubt I suggest you speak to your employment attorney. In bringing this article back to where we started, when it comes to PSL you can generally state that “hours worked” is the same as the “hours worked” used for calculation of overtime.
In closing, I will comment on the picture above. It was taken on the North Rim over Thanksgiving Weekend 2016. The coyote was hunting. We watched him for a while. He or she was so beautiful against the fresh white snow! My husband is a great amateur photographer.