There may be times when a nanny or a senior caregiver is required for overnight care, long shifts, or work as a live-in employee. Sleeping time laws vary by the type of shift the caregiver is working and where the work is being performed.
Typically, the caregiver needs to be paid for the time they spend sleeping.
Here are the standards set by the Fair Labor Standards Act (FLSA).
The caregiver is on duty for less than 24 hours
Let’s say the caregiver works a 16-hour overnight shift from 5 p.m. to 9 a.m. Their charge goes to bed at some point during the evening or night. The caregiver may be allowed to sleep as well if all their other duties are completed, and knowing that they must awake to respond to any of their charge’s needs. Even though they are sleeping, the caregiver remains on duty to perform work. That means they are paid for all hours on the job, including those when they may be allowed to sleep. Remember, overtime pay of at least time and a half likely applies to hours worked over 40 in a week.
The caregiver is on duty for 24 or more hours
If a caregiver is on the job for 24 or more hours, sleeping time and meal periods must be paid. However, an agreement could be made with the caregiver to exclude sleep time and meal periods from hours worked. To do this, adequate sleeping facilities must be provided, and the caregiver must get eight hours of uninterrupted sleep.
If the caregiver’s sleep time is interrupted to perform work and, as a result, they get five or fewer hours of sleep, all time must count as hours worked, including hours the employee slept. If the caregiver performs work during their sleep time but still gets more than 5 hours of sleep, they only need to be paid for the time the caregiver worked.
Again, rules on overtime pay may apply.
Caregiver resides on the premises
If a family hires a live-in caregiver, they are typically not required to pay them for sleeping time. The caregiver is considered to have adequate time for personal activities and can even leave the employer’s premises for personal reasons.
State laws
Many states have their own requirements for sleeping time. While these state laws may be similar to FLSA requirements, families must comply with the provision that is more favorable to the caregiver.
California
In California, non-exempt employees who work a 24-hour shift or longer must be paid for their sleeping time. However, if an employee can get more than five hours of uninterrupted sleep, those hours do not need to be paid, and the time excluded for uninterrupted sleep cannot exceed eight hours. The employer must also furnish adequate sleeping facilities.
New York
Under New York’s Minimum Wage Order, an employer may pay home health aides for only 13 hours of a 24-hour shift if the aides receive at least 3 hours of meal break time and at least 8 hours of sleep (at least 5 of which must be uninterrupted).
Nevada
Nevada’s Domestic Workers’ Bill of Rights requires payment for all working hours, including sleep time and meal breaks, if the worker is required to be on duty during those times.
Oregon
Oregon’s Domestic Workers’ Protection Act requires that live-in employees receive at least eight hours of time off within a 24-hour period and be provided with a space with adequate conditions for uninterrupted sleep.
Documenting Sleep Time and Hours Worked
A recurring theme in recent case law (especially in New York) is that employers who follow the sleep exclusion rules but fail to document compliance remain vulnerable to wage-and-hour claims. Household employers should keep time records and written sleep-time agreements.
About GTM Payroll & HR
GTM specializes in the complexities of domestic employment, providing comprehensive solutions that handle everything from tax withholdings and filings to workers’ compensation and compliance. Families can speak with a household employment expert today at (800) 929-9213 or they can schedule a time with us at their convenience.