Last updated: September 2026

Compensable Time: What Counts as Hours Worked Under the FLSA

Off the clock does not mean off the books.

The FLSA counts work the employer suffers or permits, which is a lower bar than work the employer asked for. The rules live in 29 CFR part 785, issued in 1961 and still the governing text. Most disputes are not about whether the work happened. They are about whether it counted.

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.

Section 785.12 extends that to work performed away from the premises, including at home. The same knew or had reason to believe standard applies, which is what makes remote work a recordkeeping problem rather than a legal question.

Then section 785.13 closes the door most employers try to leave open. 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 written policy against off the clock work is a partial defense at best. A supervisor who watches it happen has supplied the permission that makes it compensable.

The tradeoff is real. Enforcing the rule means confronting employees who are trying to finish their work, which is why the policy usually goes unenforced and the liability accrues quietly.

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.

There is no federal response time threshold. No regulation and no WHD guidance sets a number of minutes that makes on call time compensable. Fact Sheet 22 adds only that additional constraints on the employee's freedom could require the time to be paid, which 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, and adds a line employers miss: 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 the length, that any extension breaks the rules, and that 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.

An automatic 30 minute deduction applied without verifying the break was taken is the easiest violation for an investigator to find. The timekeeping system records the assumption rather than the fact. The tradeoff is administrative: verifying every break costs supervisor time that most operations would rather spend elsewhere.

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, provided adequate facilities are furnished and the employee can usually 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, and the Division's enforcement rule is that failing to get at least 5 hours 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.

Training Pays Unless All Four Conditions Hold

Section 785.27 sets four criteria, and every one must be met for the time to be unpaid. 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.

Voluntariness fails most often. Section 785.28 says attendance is not voluntary in fact if the employee is given to understand or 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, as opposed to preparing them for a different job or a new skill. A stenographer taking stenography is on the clock. The same worker taking bookkeeping voluntarily and outside hours may not be.

An employer can offer job related training without paying for it in one narrow case. Section 785.31 excludes voluntary attendance outside working hours at an employer program that corresponds to courses offered by independent institutions of learning, even where the course is directly related and the employer pays for it.

The tradeoff is that the exception requires building a real program modeled on outside instruction, which costs more than a mandatory afternoon session would.

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, because the employee is working.

De Minimis Is Narrower Than Employers Think

Section 785.47 is the source of the federal de minimis rule, and it is written as a limit rather than a licence. 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.

The same section forecloses the usual misreading. An employer may not arbitrarily fail to count any part, however small, of the employee's fixed or regular working time, or of a practically ascertainable period the employee is regularly required to spend on assigned duties.

There is no 10 minute allowance. That figure comes from a case the regulation cites, and the case held the opposite of what employers usually take from it. Hawkins v. du Pont 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. The rule is a narrow allowance for time that genuinely cannot be recorded, not a threshold below which time stops counting.

California goes further. In Troester v. Starbucks the California Supreme Court held that the wage order and Labor Code did not permit the employer to disregard several minutes of required off the clock work at the end of each shift.

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.

Pull twelve months of punch data and look for employees clocking out at the same minute every shift. That pattern points at rounding or supervisor edits rather than at unusually punctual workers.

Read the handbook against what supervisors actually do. Under section 785.13 a policy the company does not enforce is close to worthless as a defense.

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

Recordkeeping under 29 CFR 516 requires actual hours worked, the regular rate, straight time and overtime pay for each period. Where those records are missing, the employer argues from memory against an employee's estimate, which is a weak position to choose.

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, how overtime is calculated for what unpaid time becomes once it crosses 40 hours, and regular rate of pay for the figure back wages are computed on. The overtime hub maps the rest.

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