Last updated: October 2026

Compensable Time: What Counts as Hours Worked Under the FLSA

Off the clock does not mean off the books.

The Fair Labor Standards Act (FLSA) counts work the employer suffers or permits, which is a lower bar than work the employer asked for. The rules live in title 29 of the Code of Federal Regulations (CFR), part 785, issued in 1961 and still the governing text.

Knowing About the Work Is Enough

Section 785.11 is blunt about it. Work not requested but suffered or permitted is work time, and the reason the employee kept working is immaterial. If the employer knows or has reason to believe the work is continuing, the time counts.

Work performed away from the premises, including at home, is covered too under section 785.12. The same knew or had reason to believe standard applies.

Section 785.13 adds that management must exercise control and see that unwanted work is not performed. In the regulation's own words, the mere promulgation of a rule against such work is not enough, and management must make every effort to enforce it.

A supervisor who watches it happen has supplied the permission that makes it compensable.

Waiting Time Turns on Who Controls It

The dividing line is engaged to wait against waiting to be engaged, and section 785.15 supplies the test. A stenographer reading a book between dictation, a messenger doing a crossword between assignments, a firefighter playing checkers between alarms. All are working, because the periods are unpredictable, usually short, and the employee cannot use them effectively for personal purposes.

Section 785.16 sets the other side. An employee is not completely relieved from duty unless told in advance that they may leave and need not resume until a specified hour. The regulation's truck driver example makes the point. A driver waiting for a load is working, and a driver specifically relieved from all duty until a stated time is not.

On call is its own section, 785.17, and the test is location rather than duration. An employee required to remain on the premises, or so close that the time cannot be used effectively, is working. An employee who need only leave word where they can be reached is not.

Fact Sheet 22 from the Department of Labor (DOL) adds only that additional constraints on the employee's freedom could require the time to be paid. That is a facts and circumstances test rather than a rule.

The tradeoff for employers is scheduling flexibility against payroll cost. A tighter leash produces faster response and a stronger argument that the time is compensable.

Rest and Meal Periods Have Different Rules

Section 785.18 makes rest periods running from 5 minutes to about 20 minutes compensable. Compensable rest time may not be offset against other working time such as waiting time or on call time.

Fact Sheet 22 adds one exception. Unauthorized extensions of an authorized break need not be counted, but only where the employer expressly and unambiguously communicated three things. The break may only last a specific length of time, any extension breaks the rules, and an extension will be punished. All three conditions, not one.

Meal periods are governed by section 785.19. Ordinarily 30 minutes or more is long enough, and the employee must be completely relieved from duty for the purpose of eating. An office worker required to eat at their desk is working while eating.

An employee does not have to be allowed to leave the premises. Section 785.19(b) says a meal period still counts as bona fide if the employee is otherwise completely freed from duties.

Sleep Time on Shifts of 24 Hours or More

Under 24 hours, there is no sleep exclusion at all. Section 785.21 says an employee required to be on duty for less than 24 hours is working even when permitted to sleep, and furnishing sleeping facilities makes no difference.

At 24 hours or more, section 785.22 allows the employer and employee to agree to exclude a regularly scheduled sleeping period of up to 8 hours. Adequate sleeping facilities must be furnished, and the employee must usually be able to enjoy an uninterrupted night's sleep. Absent any agreement, the sleeping time and meal periods are hours worked.

Interruptions are handled precisely. Any call to duty during the sleeping period counts as hours worked. If the period is interrupted enough that the employee cannot get a reasonable night's sleep, the entire period counts. The Wage and Hour Division's enforcement rule is that failing to get at least 5 hours of sleep during the scheduled period makes the whole time working time.

An employee who resides on the premises is treated differently. Section 785.23 accepts any reasonable agreement between the parties, on the reasoning that a resident employee has normal private pursuits and complete freedom from duty for stretches of the day.

When Training Need Not Be Counted as Working Time

Section 785.27 sets four criteria. Attendance outside regular working hours, attendance in fact voluntary, the course not directly related to the employee's job, and no productive work performed during it.

Attendance is not voluntary in fact, under section 785.28, if the employee is led to believe that working conditions or continued employment would be adversely affected by not attending.

Directly related has a precise meaning too. Section 785.29 treats training as job related when it is designed to make the employee handle the current job more effectively. A stenographer taking stenography is on the clock. The same worker taking bookkeeping voluntarily and outside hours may not be.

Section 785.31 covers an employer program that corresponds to courses offered by independent institutions of learning. Voluntary attendance outside working hours is not hours worked, even where the course is directly related or the employer pays for it.

Travel Time Splits Four Ways

Ordinary home to work travel is not work time under section 785.35, whether the employee reports to a fixed location or to different job sites.

Travel that is all in the day's work is compensable under section 785.38. Job site to job site during the workday counts. So does travel from a required meeting place where the employee receives instructions or picks up tools, regardless of contract, custom, or practice.

A special one day assignment in another city is work time under section 785.37, minus the commute the employee would have made anyway and minus the usual meal time.

Travel away from home overnight is work time when it cuts across the workday, including the corresponding hours on nonworking days. An employee who works 9 to 5 on weekdays is owed for travel during those hours on a Saturday.

The exception is the one most worth knowing. As an enforcement policy, the Division will not count time spent traveling away from home outside regular working hours as a passenger on an airplane, train, boat, bus, or automobile. Riding as a passenger on a Sunday evening flight is not compensable. Driving that same trip is a different question.

De Minimis Is Narrow

Section 785.47 is the source of the federal de minimis rule, and it is written as a limit rather than a license. Insubstantial periods that cannot as a practical administrative matter be precisely recorded may be disregarded. The rule reaches only uncertain and indefinite periods of a few seconds or minutes, where not counting them is justified by industrial realities.

It adds that an employer may not arbitrarily fail to count any part, however small, of the employee's fixed or regular working time. The same goes for a practically ascertainable period the employee is regularly required to spend on assigned duties.

There is no 10 minute allowance. Hawkins v. du Pont (1955), a case the regulation cites, found that 10 minutes a day is not de minimis. A second cited case held that disregarding workweeks where less than a dollar is due produces capricious and unfair results.

California goes further. In Troester v. Starbucks the California Supreme Court held that the wage order and Labor Code did not permit disregarding several minutes of required off the clock work.

Troester did not decide that every brief activity must be paid in California. The court expressly reserved whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect it to be recorded. What it decided is bounded by the facts it was given, a regular required few minutes every shift.

What to Check Before an Investigator Does

Compare the time clock's location against the point where work actually starts. If they differ, the recorded start time and the legal start time differ with them.

Read the handbook against what supervisors actually do.

Check whether any automatic meal deduction is verified against a real break.

Recordkeeping under 29 CFR 516 requires hours worked each workday and each workweek, the regular rate, straight time earnings and overtime pay.

The DOL Fact Sheet 22 summarizes the federal position, though the regulation controls where the two differ. See donning and doffing for gear up time specifically, and how overtime is calculated for what unpaid time becomes once it crosses 40 hours. Back wages are computed on the regular rate of pay. The overtime hub maps the rest.

This is not legal or financial advice. Consult a qualified professional for your specific situation.