Working Hours, Time Off and Leave-Module 5 of 5

Circumstances often arise that require people to take time away from their regular work schedules. When such things occur, it is important for employees to know their rights regarding taking time away from work. Employers must accurately record their employees’ working hours and compensate them for time spent performing job duties. Employers may also offer paid time off as a voluntary benefit. While there are laws requiring employers to offer workers unpaid time off, very few jurisdictions require paid time off. This module will provide an overview of common concepts and regulations pertaining to working hours, time off, and temporary leave.

Fair Labor Standards Act

The Fair Labor Standards Act[1] requires employers to compensate employees during working hours. The law requires employers covered by the law to pay a minimum hourly wage and to compensate overtime work at one-and-one-half times the employee’s regular rate of pay. The Act applies to all private employers who have at least $500,000 in annual revenue, as well as to public-sector positions in hospitals, schools, colleges and government work. Private employers who make less than $500,000 per year may also be covered by the FLSA if they engage in business that crosses state lines.

Full-time Versus Part-time

In the United States, a traditional work schedule lasts eight hours per day for five days per week, totaling 40 hours. Most jobs require a set schedule, typically during daytime hours. However, many jobs offer flexible or alternative schedules that some workers may find more suitable to their needs. There are no federal laws regulating the degree to which work schedules can be flexible, and alternative schedules must be worked out between employers and employees.[2] Between 1985 and 2001, U.S. workers saw a marked increase in the flexibility of their work schedules. In 1985, only about 12 percent of full-time workers had schedules that allowed them some flexibility in the time they started or ended their work day, compared with almost 30% today.[3]

Federal overtime and compensation laws do not distinguish between full-time and part-time employment, so working hours and compensation rules apply regardless of whether an employee works part time or full time.[4]

Night Shift

Federal law does not require additional compensation for working overnight shifts, but employers often offer additional pay or benefits to late-shift workers to encourage hiring and retention.[5] Overnight and alternate schedules are most common in service occupations, such as police, firefighters, private security, food preparation, food service, transportation, and hospitality. Overnight shifts are necessary for many types of jobs, and workers in these fields typically expect irregular hours based upon the nature of their work. However, many employees working alternative shifts prefer the hours because they allow for better family or child care arrangements and can provide better pay.[6]

Job Sharing

Job sharing is an employment arrangement in which workers share shifts and responsibilities of a single full-time position. The Fair Labor Standard Act does not mention job sharing, and the terms and conditions of such an arrangement must be agreed upon by the employer and employees involved.[7] Job sharing can offer substantial benefits including job flexibility, increased worker productivity and improved employee morale. Job sharing programs can also help companies recruit and train new employees and increase retention.

Overtime

The Fair Labor Standard Act requires overtime pay for all covered employees who work more than 40 hours in a week. For every hour worked over 40, employees must be paid at least 1.5 times their regular pay rates. For workers on commission, salary, or some basis other than hourly pay, the overtime rate must be set at the average hourly rate from their total earnings. Because overtime pay is an employment right created by federal law, employees cannot waive or give up the overtime premium. As such, companies that prohibit overtime work or enforce policies stating that overtime work will not be paid unless pre-approved may violate overtime rules.[8]

Telecommuting

Telecommuting, or working remotely, is becoming more common as communication technology becomes increasingly sophisticated. A recent study found that nearly 20% of the U.S. workforce telecommuted to their jobs either part or full time, and nearly two-thirds of employers allowed telecommuting. This same study found that employees who work from home often earn more than employees that work at a common location, but this varies by industry. It is unclear whether the increased wage is attributable to higher productivity among telecommuting workers or due to factors specific to home-based work.

Industrial Homeworkers

Industrial homework, also known as “piecework,” is the production of goods for an employer that a worker performs at home.[9] Industrial homework in so-called “restricted industries,” including knitting, the manufacture of apparel, embroidery, or jewelry making, is not allowed unless special certification is issued by the Department of Labor.[10]

The Department of Labor issues two types of industrial homeworker certificates: individual industrial homeworker certificates and employer homeworker certificates. Individual industrial homeworker certificates authorize a person to engage in industrial homework because of circumstances that limit the worker’s ability to be employed outside the home. Employer homeworker certificates allow an employer to engage homeworkers in any of the restricted industries except for the manufacture of apparel.[11]

Regardless of whether they are paid by time, productivity, or commission, homeworkers cannot be compensated at rates that amount to less than the federal minimum wage. Like other covered employees, homeworkers must be paid for overtime work at 1.5 times their average rate of pay.[12]

Seasonal Work

Seasonal work is very common in industries that are typically subject to a peak in demand at certain times of the year. Workers are often hired on temporary bases in agricultural work, tourism, retail sales and other industries that are driven by seasonal peaks. Though both are non-permanent employees, there is a minor distinction between temporary workers and seasonal workers. Temporary employees are hired on a finite basis for special projects or to cover for permanent employees when they are absent. Companies often bring in temporary workers when permanent employees take extended leave for the birth of a child, military service or illness. In contrast, seasonal employees are hired to perform a job for a season, such as harvesting ripe fruit and vegetables.[13]

The Fair Labor Standards Act protections apply to seasonal workers and permanent employees. Seasonal workers are entitled to overtime, and they must be compensated at no less than the minimum wage. Seasonal employees are also entitled to the same anti-discrimination protections as permanent employees, and employers of temporary or seasonal workers must comply with workplace health and safety rules just as they would for any other member of their workforce. Although unemployment compensation rules vary state to state, most jurisdictions require employers to provide unemployment benefits for temporary workers. Employers of seasonal and temporary workers should follow the same formal processes for starting and ending employment that companies require when terminating permanent employees. Formal processes can hedge against the risk of an improper discriminatory impact to seasonal and temporary workers.[14]

Seasonal employment is particularly common in agriculture, as thousands of workers are brought on each year during the harvest season.
While Fair Labor Standards Act exempts agricultural employers from minimum wage requirements if their operations are limited to seven full-time employees or less, the Migrant and Seasonal Agricultural Worker Protection Act imposes rules on the hiring and employment of agricultural workers, farm labor contractors and migrant or seasonal workers, establishing wage requirements, housing standards, safety standards, registration requirements and mandatory disclosures.[15]

To assist seasonal workers, Congress created the National Farmworker Jobs Program. This program addresses chronic seasonal unemployment among migrant farmworkers by offering support services to seasonal farmworkers and their families. If the workers so elect, the program can also help them acquire other employment skills.[16] Over 20,000 workers annually receive assistance under the National Farmworker Jobs Program, with over 85% securing employment through the program.[17]

Rules Regarding Short-term Absences for Reasons other than Injury or Illness

Breaks

There is no federal law requiring breaks during the work day. If an employer offers a short break to its employees (usually five to 20 minutes), federal law treats the time the employee spent on break as working hours that must be included in wage and overtime calculations.[18] However, if an employer offers a bona fide meal break lasting 30 minutes or more, these meal breaks are not recognized as work time and therefore employees are not entitled to compensation for these periods.[19]

Family and Medical Leave

Federal law requires most employers to provide unpaid leave for family and medical reasons. The Family and Medical Leave Act requires employers to provide up to 12 weeks of leave per year to employees facing certain family or medical issues. FMLA leave can be unpaid, but the employee on leave must be allowed to return to work without retaliation by the employer.[20]

FMLA leave is available to employees during the birth and early care of children, the placement of a child for adoption or foster care, the care of an immediate family member with a serious health issue and when the employee is unable to work due to a serious health condition. Before taking time off under the FMLA, the employee must give the employer at least 30-days notice if the leave is foreseeable. The FMLA prohibits employers from terminating employees for exercising their rights to take leave under the law, but it does not require permanent accommodations such as changes in work schedules or allowing telecommuting.[21] Note, though, that accommodations may be required by the Americans with Disabilities Act if the employee’s reason for leave under the FMLA rises to the level of disability.

To be eligible for leave under the FMLA, the worker must have been working at the same company for at least 12 months and have worked at least 1,250 hours for the company over the last year. In addition, the company must have at least 50 employees working for it within a 75-mile radius. Small businesses are not required to offer medical leave to their employees, although they often do as a matter of policy.

Employers are required to inform covered employees of their rights under the FMLA, which is typically done by standardized forms available from the Department of Labor.[22]

In 2009, Congress passed the National Defense Authorization Act, which amended the Family Medical Leave Act to create new rights to leave for military servicemembers and, in some circumstances, their family members.[23] Servicemembers and their immediate families are entitled to 12 workweeks of unpaid “qualifying exigency leave” per year when a member of the armed forces or its reserve components is called to active duty. Furthermore, the law requires employers to give up to 26 workweeks of unpaid “military caregiver leave” per year to families of covered servicemembers who need care for serious injuries.[24]

Holidays and Personal Time

The Fair Labor Standards Act does not require employers to compensate employees who take time off for holidays, and any time off for special occasions is a matter for negotiation between the employer and employee.[25] While the Fair Labor Standards Act allows employers to deduct pay for personal days, federal law does require holiday and vacation for workers for companies who have government contracts in some circumstances.[26]

Military service

The Uniformed Services Employment and Reemployment Rights Act requires businesses to reemploy certain people who left their jobs to serve in the armed forces.[27]

This law was designed to minimize employment disadvantages to people who are forced to be absent from the civilian workforce to serve their country. Protections under the act extends to all members of the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned and reserve corps. Nearly all employers in the United States are required to reemploy service members after they leave their jobs for active duty, training, inactive duty and service in the National Guard. This requirement extends to probationary and part-time employees in addition to full-time workers.[28]

Employees who take leave under the Act must provide their employers with notice of pending departure. After returning from active duty, employees are required to return to work within a specified time. If the servicemember was active for less than 31 days, he or she must return to work on the first workday after release from service. Employees returning from active duty of up to 181 days must apply for reemployment within two weeks of returning home. Employees who had been deployed for more than 180 days have three months to return to work. Once the employee applies for reemployment, the employer is obligated to restore the servicemember to the same job that he or she had before deployment. Servicemembers who are no longer qualified for their former positions or whose positions have been eliminated by the time they return to work are entitled to retraining at their employer’s expense.[29]

Jury Duty

Most employers offer paid leave for jury duty. Approximately 74% of all employers allow employees to take paid time off to serve on a jury, and many states require companies to compensate workers for time taken off for this purpose. Other states require only unpaid leave or allow workers to take vacation days for jury service. Penalizing an employee for performing jury duty may also run afoul of local rules regarding wrongful retaliation or termination based on public policy reasons.[30]

Comparison with Other Developed Democracies

While the Family Medical Leave Act and state laws regarding paid leave have marked important steps forward in regulations that protect workers from unfair treatment and improve quality of life for working families, many other developed democracies have paid leave laws that are much more generous. In Belgium, all workers are legally entitled to 20 to 24 paid days off per year. Similarly, workers in Argentina receive a minimum of 21 paid days off per year. Great Britain offers parents 52 weeks of paid time off when they have children, and female workers in Japan are entitled to 14 weeks of paid maternity leave in addition to a full year of unpaid leave.[31]

Fortunately for workers in the U.S., there are currently several state-level movements for sick leave laws beyond those mandated by federal law. Seven states – Arizona, California, Oregon, Washington, Connecticut, Massachusetts, and Vermont – plus the District of Columbia have all passed laws requiring employers to offer workers paid sick leave in certain circumstances. There are also sick leave laws currently on the books in at least 28 municipal and local governments, including New York City, Chicago and San Francisco. Several other states are currently considering sick-leave laws, and employees should be aware of the rights to paid leave that apply to workers in their areas.[32]

Special Wage and Hour Requirements for Workers Under Age 18

Child labor was extremely common in colonial America largely due to widely-held social beliefs about childhood development. Many people believe that child labor was an act of charity, as it kept young people fed, housed, occupied and out of trouble. As a result, children were a meaningful part of the American workforce well into the 1900s. Children aged 10 to 15 made up about 6% of the national workforce in the year 1900, with 1.75 million children in this age group working full time. However, as the Industrial Revolution shifted low-skilled jobs from farms to factories, children were being exposed to increasingly hazardous workplaces. The National Child Labor Committee was established in 1904 to analyze the impacts of child labor and propose reforms, but reforms were slow to take hold. In fact, the first two national laws regulating child labor were overturned by the Supreme Court. Not until 1938 did the Supreme Court allow the federal government to regulate child labor on the national level. Since then, the child labor laws have had significant impact on childhood health and wellbeing.[33]

Following the enactment of national child labor protections under the FLSA, several states and municipalities passed laws mandating school attendance. In 1910, only 8.8% of 17 year-olds graduated from high school. Graduation rates grew to over 50% within two years of the passage of the Fair Labor Standards Act and have continued to increase since. Now, almost 90% of Americans have high school diplomas by age 25.[34]

The Department of Labor monitors child labor and enforces the Fair Labor Standards Act’s restrictions on employment and prohibition on abuse of child workers. Minors under age 16 are generally prohibited from working during school hours unless they are employed by parents or guardians. The prohibition on minors working during public school hours applies even if a minor is enrolled in private school, home schooled, has already graduated or has dropped out of school.[35]

Children under 14 are generally prohibited from being hired as employees unless the type of work is exempted from child labor law restrictions. Jobs that children under age 14 may work include professional acting, babysitting, certain farm jobs and delivering newspapers.[36]

Children aged 14 and 15 may work outside of school hours in jobs determined by the Department of Labor as not disruptive to the child’s health and wellbeing. However, they are limited in the number of hours and time of day they may work, and may not work more than 40 hours in any week and no more than 18 hours per week while school is in session.[37]

Once a child worker reaches age 16, he or she may work unlimited hours at any time of day. However, the law identifies occupations deemed too hazardous to be suitable for employment of people under the age of 18, including mining, manufacturing explosives and operating certain equipment.[38]

Agricultural Work

Federal child labor laws apply to people under age 18 working on farms that export products or are otherwise involved in business activities that cross state lines.[39]

Children age 16 or older may perform any farm job.[40] Children as young as 14 can work on farms if they are not working during school hours or performing jobs declared hazardous by the Department of Labor. 12 and 13-year-old children can work at a farm outside of school hours if a parent also works at the farm and consents to the child’s employment.[41]

Children under the age of 12 can work on farms only under very limited circumstances. Under the parental exemption, however, children of any age can work on a farm owned or operated by their parent or legal guardian.[42]

Willful violation of the FLSA’s child labor rules is a crime punishable by up to six months in federal prison and a fine of up to $10,000.[43]

Minors covered under the child protection requirements of the Fair Labor Standards Act are generally entitled to the statutory minimum wage, but some exceptions apply. For example, workers under age 20 may be paid as little as $4.25 per hour during the first 90 days of employment.[44]

Subminimal wage standards are also applied to workers who are full time students, student learners, interns, apprentices and workers with disabilities. However, employers must typically receive authorization from the Department of Labor to pay a subminimal wage.[45]

Internships and vocational training programs

Young people can learn a great deal from hands-on learning and vocational training. To accommodate these programs, the Fair Labor Standards Act allows for minors to participate in work and vocational programs recognized by state or local educational authorities. Student-workers may participate in these programs if the work is properly limited in scope, the student is trained and instructed properly on safety and the work is a component of the students’ vocational training. Student-workers also must be directly and closely supervised by an experienced employee.[46]

States can, and do, also regulate child labor. Every U.S. state has its own policies regarding minimum age for employment and whether and under what circumstances children can work. These include requirements for proof of age and maximum daily and weekly work hours.[47] Between federal and state rules on the subject, a balance is struck between allowing children the training and character building that work brings and the need to limit children’s exposure to danger and interference with their education.