Wis. Admin. Code Department of Workforce Development DWD 272.12 - Interpretation of hours worked
(1) PRINCIPLES FOR
DETERMINATION OF HOURS WORKED.
(a)
General requirements of sections.
1. Employees subject to the statutes must be
paid for all time spent in "physical or mental exertion (whether burdensome or
not) controlled or required by the employer and pursued necessarily and
primarily for the benefit of the employer's business." The workweek ordinarily
includes "all time during which an employee is necessarily required to be on
the employer's premises, on duty or at a prescribed work place."
2. "Workday," in general, means the period
between"the time on any particular workday at which such employee commences
their principal activity or activities" and "the time on any particular workday
at which they cease such principal activity or activities." The "workday" may
thus be longer than the employee's scheduled shift, hours, tour of duty, or
time on the production line. Also, its duration may vary from day to day
depending upon when the employee commences or ceases their "principal"
activities.
(2) APPLICATION OF PRINCIPLES.
(a)
Employees "suffered or permitted"
to work.
1. General. Work not
requested but suffered or permitted is work time. For example, an employee may
voluntarily continue to work at the end of the shift. They may be a
pieceworker, they may desire to finish an assigned task or they may wish to
correct errors, past work tickets, prepare time reports or other records. The
reason is immaterial. The employer knows or has reason to believe that they are
continuing to work and the time is working time.
2. Work performed away from the premises or
job site. The rule is also applicable to work performed away from the premises
or the job site, or even at home. If the employer knows or has reason to
believe that the work is being performed, they must count the time as hours
worked.
3. Duty of management. In
all such cases it is the duty of the management to exercise its control and see
that the work is not performed if it does not want it to be performed. It
cannot sit back and accept the benefits without compensating for them. The mere
promulgation of a rule against such work is not enough. Management has the
power to enforce the rule and must make every effort to do so.
(b)
Waiting time.
1. General. Whether waiting time is time
worked depends upon particular circumstances. The determination involves
"scrutiny and construction of the agreements between particular parties,
appraisal of their practical construction of the working agreement by conduct,
consideration of the nature of the service, and its relation to the waiting
time, and all of the circumstances. Facts may show that the employee was
engaged to wait, or they may show that he/she waited to be engaged."
2. On duty. A stenographer who reads a book
while waiting for dictation, a messenger who works a crossword puzzle while
awaiting assignments, a firefighter who plays checkers while waiting for alarms
and a factory worker who talks to fellow employees while waiting for machinery
to be repaired are all working during their periods of inactivity. The rule
also applies to employees who work away from the plant. For example, a
repairperson is working while they wait for their employer's customer to get
the premises in readiness. The time is work time even though the employee is
allowed to leave the premises or the job site during such periods of
inactivity. The periods during which these occur are unpredictable. They are
usually of short duration. In either event the employee is unable to use the
time effectively for their own purposes. It belongs to and is controlled by the
employer. In all of these cases waiting is an integral part of the job. The
employee is engaged to wait.
3. Off
duty. Periods during which an employee is completely relieved from duty and
which are long enough to enable them to use the time effectively for their own
purposes are not hours worked. They are not completely relieved from duty and
cannot use the time effectively for their own purposes unless they are
definitely told in advance that they may leave the job and that they will not
have to commence work until a definitely specified hour has arrived.
4. On-call time. An employee who is required
to remain on call on the employer's premises or so close thereto that they
cannot use the time effectively for their own purposes is working while "on
call." An employee who is not required to remain on the employer's premises but
is merely required to leave word at their home or with company officials where
they may be reached is not working while on call.
(c)
Rest and meal periods.
1. Rest. Rest periods of short duration,
running less than 30 minutes are common in industry. They promote the
efficiency of the employee and are customarily paid for as working time. They
must be counted as hours worked. Compensable time of rest periods may not be
offset against other working time such as compensable waiting time or on-call
time.
2. Meal. Bona fide meal
periods of 30 minutes or more are not work time. Bona fide meal periods do not
include coffee breaks or time for snacks. These are rest periods. The employee
must be completely relieved from duty for the purposes of eating regular meals.
Ordinarily 30 minutes or more is long enough for a bona fide meal period. The
employee is not relieved if they are required to perform any duties, whether
active or inactive, while eating. For example, an office employee who is
required to eat at their desk or a factory worker who is required to be at
their machine is working while eating.
(d)
Sleeping time and certain other
activities. Under certain conditions an employee is considered to be
working even though some of their time is spent in sleeping or in certain other
activities.
1. Definitions. In this paragraph:
a. "Day" means a calendar day or a period of
24 consecutive hours.
b. "Home care
premises" means premises or locations, including group homes, in which the
employer is acting either directly or indirectly as an agent to provide home
care services for an elderly person, a person with a disability, a person
otherwise in need of care and assistance in the home, or for the family of such
a person.
c. "Homelike environment"
means facilities, including private quarters as defined in par. (f), and also
including facilities for cooking and eating on the same premises; for bathing
in private; and for recreation, such as television. The amenities and quarters
shall be suitable for long-term residence by individuals and shall be similar
to those found in typical private residence or apartment, rather than those
found in institutional facilities such as dormitories, barracks, and short-term
facilities for travelers.
d.
"Off-duty" means the time period during which the employee is completely
relieved from duty and is free to leave the home care premises or otherwise use
the time for his or her benefit.
e.
"On-duty" means the period of time the employee is required to be on the home
care premises or otherwise working for the employer.
f. "Private quarters" means living quarters
that are furnished, are separate from the clients and from any other staff
members, have as a minimum the same furnishings available to clients, such as
bed, table, chair, lamp, dresser, closet, and in which the employee is able to
leave his or her belongings during on-duty and off-duty periods.
g. "Workweek" means 7 consecutive 24-hour
periods.
2. Less than
24-hour duty.
a. An employee who is required
to be on duty for less than 24 hours is working even though they are permitted
to sleep or engage in other personal activities when not busy. A telephone
operator, for example, who is required to be on duty for specified hours is
working even though they are permitted to sleep when not busy answering calls.
It makes no difference that they are furnished facilities for sleeping. Their
time is given to their employer. They are required to be on duty and the time
is work time.
b. Allowances for
board and lodging as provided in s.
DWD 272.03(3) or
(4) may be considered by a mutual written or
implied agreement.
3.
a. Where an employee is required to be on
duty for 24 consecutive hours or more, the employer and the employee pursuant
to a mutual written agreement may agree to exclude bona fide meal periods and a
bona fide regularly scheduled sleeping period of not more than 8 hours from
hours worked per 24-hour period, provided adequate sleeping facilities are
furnished by the employer and the employee can usually enjoy an uninterrupted
night's sleep. If the sleeping period is more than 8 hours, only 8 hours shall
be credited per 24-hour period. Where no written agreement to the contrary is
present, the 8 hours of sleeping time and lunch periods constitute hours
worked. If the sleeping period is interrupted by a call to duty, the
interruption shall be counted as hours worked. Employers may take credit for
board and lodging as prescribed by s.
DWD 272.03(3) or
(4), whichever is applicable. Record keeping
requirements provided in s.
DWD
272.11 shall apply.
b. If the sleeping period is interrupted by a
call to duty, the interruption must be counted as hours worked. If the period
is interrupted to such an extent that the employee cannot get a reasonable
night's sleep, the entire period must be counted.
4. Employees residing on employer's premises,
home care premises or working at home. An employee who resides on his or her
employer's premises or home care premises on a permanent basis or for extended
periods of time is not considered as working all the time he or she is on the
premises. Ordinarily, the employees may engage in normal private pursuits and
thus have enough time for eating, sleeping, entertaining, and other periods of
complete freedom from all duties when he or she may leave the premises for
purposes of his or her own. It is of course difficult to determine the exact
hours worked under these circumstances and any reasonable written agreement of
the parties which takes into consideration all of the pertinent facts shall be
accepted.
5. Home care premises.
a. When an employee who provides home care
services does not maintain his or her permanent residence on the home care
premises and does not otherwise reside on the premises 7 days a week, the
department shall consider an employee who sleeps in private quarters, in a
homelike environment, to reside on the premises for an extended period of time
within the meaning of par. (d) 4, if the employee resides on the premises for a
period of at least 120 hours in a workweek.
b. An employee shall be found to reside on
the premises for extended periods of time if both of the following apply: the
employee is on duty at the home care premises and is compensated for at least 8
hours in each of 5 consecutive 24-hour periods; and the employee sleeps on the
premises for all sleep periods between the beginning and end of the 120 hour
period. Any 24-hour period can be utilized, and the 8 compensated hours per
24-hour period need not be consecutive. An employee who is on duty and
compensated for the period 5:00 p. m. to 10:00 p.m. Monday, 6:00 a.m. to 9:00
a.m. and 3:00 p.m. to 10:00 p.m. Tuesday through Friday, and 6:00 a.m. to 9:00
a.m. Saturday, and who sleeps on the premises (10:00 p.m. to 6:00 a.m.) for all
sleep periods from Monday night through Friday night, has been compensated for
at least 8 hours in 5 consecutive 24-hour periods between 5:00 p.m. Monday and
5:00 p.m. Saturday. The employee would also have slept 5 consecutive nights on
the premises. Provided the other conditions were met, this would be considered
to be residing on the premises for an extended period of time. An employee who
is on duty and is compensated from 6:00 a.m. to 9:00 a.m. and 5:00 p.m. to
10:00 p.m., Monday through Friday, and who sleeps Monday through Thursday
nights on the premises, would be considered to reside on the premises for
extended periods of time. These employees are called "full-time"
employees.
c. Where one or more
employees meet the "full-time employee residing on the premises test" of subd.
5. b., the department shall apply the provisions of par. (d) 4. to one or more
"relief" employees who reside on the premises for 1 to 3 nights, provided these
employees are on duty and are compensated for at least 8 hours in each 24-hour
period in question and sleep on the premises all intervening nights. Although
it is anticipated that there will be no more than one relief employee for each
full-time employee, it is possible that there may be more then one. To come
within the provisions the relief employee shall be relieving a full-time
employee. That is, the full-time employee and the employee or employees
relieving that employee may not be on duty for more than a combined total of 7
days and 7 nights in each workweek. A part-time employee shall not be
considered a relief employee if that employee and the full-time employee being
relieved are on duty simultaneously for more than one hour a day.
d. In order to deduct sleep time for
full-time and relief employees, the employees shall be provided private
quarters in a homelike environment. A reasonable agreement shall be reached, in
advance, regarding compensable time. The employer and the employee may agree to
exclude up to 8 hours per night of uninterrupted sleep time. They may also
agree to exclude a period of off-duty time during the day when the employee is
completely relieved of all responsibilities. These exclusions shall be the
result of an employe-employer agreement and not a unilateral decision of the
employer. Such an agreement should normally be in writing to preclude any
possible misunderstanding of the terms and conditions of the individual's
employment.
e. Where sleep time is
to be deducted, the employer should determine if the following criteria are
met: the employer and the employee have reached agreement in advance that sleep
time is being deducted; adequate sleeping facilities with private quarters were
furnished; if interruptions occurred, employees got at least 5 hours of sleep
during the scheduled sleeping period; employees are compensated for any
interruptions in sleep; and no more than 8 hours of sleep time is deducted for
each full 24-hour on-duty period.
f. Sleep time may not be deducted for relief
or other part-time employees who are not relieving a full-time employee, unless
such employees are themselves on duty for 24 hours or more as provided in subd.
3. An off-duty period during a weekday for such employees breaks an on-duty
period for the purposes of subd. 3. For example, a duty period from 5:00 p.m.
of one day to 5:00 p.m. the following day, during which an employee has
uncompensated free time between 9:00 a.m. and 3:00 p.m. of the on-duty period,
is not considered to be a 24-hour period.
(e)
Preparatory and concluding
activities.
1. The term "principal
activities" includes all activities which are an integral part of a principal
activity. Two examples of what is meant by an integral part of a principal
activity are the following:
a. In connection
with the operation of a lathe, an employee will frequently, at the commencement
of their workday, oil, grease, or clean their machine, or install a new cutting
tool. Such activities are an integral part of the principal activity, and are
included within such term.
b. In
the case of a garment worker in a textile mill, who is required to report 30
minutes before other employees report to commence their principal activities,
and who during such 30 minutes distributes clothing or parts of clothing at the
workbenches of other employees and gets machines in readiness for operation by
other employees, such activities are among the principal activities of such
employee. Such preparatory activities are compensable under this
chapter.
c. Among the activities
included as an integral part of the principal activity are those closely
related activities which are indispensable to its performance. If an employee
in a chemical plant, for example, cannot perform their principal activities
without putting on certain clothes, changing clothes on the employer's premises
at the beginning and end of the workday would be an integral part of the
employee's principal activity. On the other hand, if changing clothes is merely
a convenience to the employee and not directly related to their principal
activities, it would be considered as a "preliminary" or "postliminary"
activity rather than a principal part of the activity. However, activities such
as checking in and out and waiting in line to do so would not ordinarily be
regarded as integral parts of the principal activity or activities.
(f)
Lectures,
meetings and training programs.
1.
General. Attendance at lectures, meetings, training programs and similar
activities need not be counted as working time if the following 4 criteria are
met:
a. Attendance is outside of the
employee's regular working hours;
b. Attendance is in fact voluntary;
c. The course, lecture, or meeting is not
directly related to the employee's job; and
d. The employee does not perform any
productive work during such attendance.
2. Involuntary attendance. Attendance is not
voluntary, of course, if it is required by the employer. It is not voluntary in
fact if the employee is given to understand or led to believe that their
present working conditions or the continuance of their employment would be
adversely affected by nonattendance.
3. Training directly related to employee's
job. The training is directly related to the employee's job it if is designed
to make the employee handle their job more effectively as distinguished from
training them for another job, or to a new or additional skill. For example,
stenographers who are given a course in stenography are engaged in an activity
to make them a better stenographer. Time spent in such a course given by the
employer or under their auspices is hours worked. However, if the stenographers
take a course in bookkeeping, it may not be directly related to their job.
Thus, the time they spend voluntarily in taking such a bookkeeping course,
outside of regular working hours, need not be counted as working time. Where a
training course is instituted for the bona fide purpose of preparing for
advancement through upgrading the employee to a higher skill, and is not
intended to make the employee more efficient in their present job, the training
is not considered directly related to the employee's job even though the course
incidentally improves their skill in doing their regular work.
4. Independent training. Of course, if an
employee on their own initiative attends an independent school, college or
independent trade school after hours, the time is not hours worked for their
employer even if the courses are related to their job.
5. Apprenticeship training. As an enforcement
policy, time spent in an organized program of related, supplemental instruction
by employees working under bona fide apprenticeship programs may be excluded
from working time if the following criteria are met:
a. The apprentice is employed under a written
apprenticeship agreement or program which substantially meets the fundamental
standards of the bureau of apprenticeship standards of the department of
workforce development, and
b. Such
time does not involve productive work or performance of the apprentice's
regular duties. If the above criteria are met the time spent in such related
supplemental training shall not be counted as hours worked unless the written
agreement specifically provides that it is hours worked. The mere payment or
agreement to pay for time spent in related instruction does not constitute an
agreement that such time is hours worked.
(g)
Travel time.
1. General. The principles which apply in
determining whether or not time spent in travel is working time depend upon the
kind of travel involved.
2. Home to
work; ordinary situation. An employee who travels from home before their
regular workday and returns to their home at the end of the workday is engaged
in ordinary home to work travel which is a normal incident of employment. This
is true whether they work at a fixed location or at different job sites. Normal
travel from home to work is not work time.
3. Home to work in emergency situations.
There may be instances when travel from home to work is work time. For example,
if an employee who has gone home after completing their day's work is
subsequently called out at night to travel a substantial distance to perform an
emergency job for one of their employer's customers, all time spent on such
travel is working time.
4. Home to
work on special one-day assignment in another city. A problem arises when an
employee who regularly works at a fixed location in one city is given a special
one-day work assignment in another city. Such travel cannot be regarded as
ordinary home-to-work travel occasioned merely by the fact of employment if
performed for the employer's benefit and at their special request to meet the
needs of the particular and unusual assignment. It would thus qualify as an
integral part of the "principal" activity which the employee was hired to
perform on the workday in question; it is like travel involved in an emergency
call, or like travel that is all in the day's work. All the time involved,
however, need not be counted. Since, except for the special assignment, the
employee would have had to report to their regular work site, the travel
between their home and the railroad depot may be deducted, it being in the
"home-to-work" category. Also, of course, the usual meal time would be
deductible.
5. Travel that is all
in the day's work. Time spent by an employee in travel as part of their
principal activity, such as travel from job site to job site during the
workday, must be counted as hours worked. Where an employee is required to
report at a meeting place to receive instructions or to perform other work
there, or to pick up and to carry tools, the travel from the designated place
to the workplace is part of the day's work, and must be counted as hours worked
regardless of contract, custom, or practice. If an employee normally finished
their work on the premises at 5 p.m. and is sent to another job which they
finish at 8 p.m. and is required to return to their employer's premises
arriving at 9 p.m. all of the time is working time. However, if the employee
goes home instead of returning to their employer's premises, the travel after 8
p.m. is home-to-work travel and is not hours worked.
6. Travel away from home community. Travel
time away from the home community for business purposes that occurs for the
benefit of the employer is considered hours worked.
7. When private automobile is used in travel
away from home community. If an employee is offered public transportation but
requests permission to drive their car instead, the employer may count as hours
worked either the time spent driving the car or the time they would have had to
count as hours worked during working hours if the employee had used the public
conveyance.
8. Work performed while
traveling. Any work which an employee is required to perform while traveling
must of course be counted as hours worked. An employee who drives a truck, bus,
automobile, boat or airplane, or an employee who is required to ride therein as
an assistant or helper, is working while riding, except during bona fide meal
periods or when the employee is permitted to sleep in adequate facilities
furnished by the employer.
(h)
Adjusting grievances, medical
attention, civic and charitable work, and suggestion systems.
1. Adjusting grievances. Time spent in
adjusting grievances between an employer and employees during the time the
employees are required to be on the premises is hours worked, but in the event
a bona fide union is involved the counting of such time will, as a matter of
enforcement policy, be left to the process of collective bargaining or to the
custom or practice under the collective bargaining agreement.
2. Medical attention. Time spent by an
employee in waiting for and receiving medical attention on the premises or at
the direction of the employer during the employee's normal working hours on
days when they are working, constitutes hours worked.
3. Civic and charitable work. Time spent in
work for public or charitable purposes at the employer's request, or under
their direction or control, or while the employee is required to be on the
premises, is working time. However, time spent voluntarily in such activities
outside of the employee's normal working hours is not hours worked.
4. Suggestions systems. Generally, time spent
by employees outside of their regular working hours in developing suggestions
under a general suggestion system is not working time, but if employees are
permitted to work on suggestion during regular working hours the time spent
must be counted as hours worked. Where an employee is assigned to work on the
development of a suggestion, the time is considered hours worked.
Notes
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