With the imminent blizzard of 2016, employers are thinking about work coverage issues. This is of particular concern for those employers who function on a 24-hour basis, like healthcare entities. In order to ensure coverage during perilous travel conditions, some employees may agree to (or even be required to) stay overnight. Obviously, any hours actually spent working must be paid, but they are likely not working during all of that time onsite. In fact, some of that time may be sleep time. What are the rules on pay under those circumstances?

The Fair Labor Standards Act provides that if an employee works for more than 24 hours, up to 8 hours of sleep time may be deducted pursuant to an agreement between the employer and employee.  The FLSA does not define what is such an “agreement.”  However, various courts have done so, and these courts have found that if an employer publishes a policy that explains the sleep time deduction and if employees continue to work for the employer, this constitutes an agreement for the deduction.  In at-will employment states, any employee who chooses not to agree to any company policy, including one like this, can certainly choose not to work for the company.  Conversely, the company can choose to terminate any employee who chooses not to agree to any of its policies.  That is what at-will employment entails.  If the company does not have a published policy on this issue, it will not be able to deduct for the sleep time.
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