Late last month, the United States Department of Labor issued a 13-page Field Assistance Bulletin that contains guidance on the federal exclusion of sleep time from hours worked by domestic service employees. These types of employees provide services of a household nature in or about a private home. A helpful fact sheet issued by the DOL on home care workers and sleep time may be found here.

Although most of the time a domestic service employee would not be an employee of a retirement community itself, there are two good reasons to be familiar with this Bulletin.

First, there may be situations where a community resident may have an employment dispute with his or her domestic service employee. The worker may go to a lawyer and the lawyer could claim that there is a joint employment relationship between the resident and the community with respect to the worker.

Those situations would be unusual and limited to their facts, but the theory could be raised. They would also run counter to the DOL’s position that a third party employer cannot avail itself of the benefits of the domestic service employee rules. Nevertheless, a court, not the DOL, would apply the law in such a situation so there is no guarantee on the outcome of the argument.

Second, if the DOL audits employers in the residential retirement industry, one may expect the Bulletin to be applied to those employees who sleep on the premises.

The Bulletin sets out the circumstances under which an employer may exclude sleep time from an employee’s hours worked under the Fair Labor Standards Act. If the exclusion is permissible, the Bulletin explains how many hours may be excluded.

Although the Bulletin is not a formal regulation, and therefore not binding on the courts, long-term care and senior living employers may find the Bulletin to be a useful resource for understanding the standards around the compensability of sleep time.

As explained in the Bulletin, the law divides employees into three groups: (i) employees who reside at the worksite (known as “live-in” employees); (ii) employees who work shifts of 24 hours or more; and (iii) employees who work shifts of less than 24 hours. The circumstances under which sleep time may be excluded from compensable work time vary by group.

Live-in Employees

Employers of live-in employees may exclude up to eight hours of sleep time from those employees’ hours worked provided that:

  1. the employer and employee have a reasonable agreement to exclude sleep time; and
  2. the employer provides the employee private quarters in a homelike environment.

The Bulletin indicates that even sleeping quarters such as a pull-out couch can qualify as “private quarters” in certain circumstances. In one of the examples contained in the Bulletin, the DOL states that “[i]f the employee sleeps on a pull-out couch in the living room while the consumer sleeps in her bedroom, keeps her bedding and belongings in a set of drawers that the consumer does not use, and has joint use of the kitchen and dining area and bathroom, the arrangement would likely qualify as providing the employee with private quarters in a homelike environment, and exclusion of sleep time would therefore be permissible.”

24-Hour Shift Employees

In contrast, employees who do not qualify as “live-in” employees but who work for shifts of 24 hours or more, are subject to different sleep time standards. For these employees, an employer may exclude up to eight hours of the employee’s sleep time from hours worked only if:

  1. the employee is provided with adequate sleeping facilities;
  2. the employee can usually enjoy an uninterrupted night’s sleep; and
  3. the parties have an expressed or implied agreement to exclude the sleep time.

Although what constitutes “adequate sleeping facilities” is an issue of fact and can vary from case to case, the Bulletin makes it clear that “an employer will have provided ‘adequate sleeping facilities’ to a domestic service employee if the employee has access to basic sleeping amenities, such as a bed and linens; reasonable standards of comfort; and basic bathroom and kitchen facilities (which may be shared).”

Unlike live-in employees, the sleeping facilities for employees who work shifts of 24 hours or more are not required to be private. According to the DOL, “[t]his distinction reflects the importance of ensuring that an employee who lives and engages in personal pursuits at the worksite has sufficient amounts of privacy in order to appropriately treat some of her time there as non-compensable.”

The Bulletin also makes it clear that an “uninterrupted night’s sleep” means that the employee is able to get five consecutive uninterrupted hours of sleep and that interruptions to that five hour period occur less than half the time that the employee works.

Less Than 24-Hour Shift Employees

The Bulletin emphasizes that an employer cannot exclude any sleep time from the hours worked by an employee who does not live at her worksite and who works shifts of fewer than 24 hours.

Beyond the general standards summarized above, the Bulletin contains multiple examples that illustrate the real-life circumstances under which sleep time may be properly excluded from an employee’s hours worked.