If an employee is on a shift lasting less than 24 hours and is required to be on duty during such a shift, she will be considered as working during the entire time, even if permitted to sleep during such time or engage in personal activities, such as eating meals, when not busy (29 C.F.R. 785.21). Neither the regulation nor the Field Operations Handbook (FOH) explain why otherwise bona fide meal periods may not be excluded from the hours worked. For law enforcement personnel paid according to the partial "tour of duty" overtime exemption under 29 U.S.C. 207(k), 29 C.F.R. 553.223(b) allows bona fide meal break time to be deducted from the hours worked in a shift of less than 24 hours. Under 29 C.F.R. 785.22, if an employee is on duty for a shift of 24 hours or more, the employer and employee may agree to exclude from hours worked the time spent in meal breaks and in "bona fide regularly scheduled sleeping periods", but there is a limit of eight hours on the amount of time that can be excluded as sleeping time. In the case of employees who work at home or reside on the employer's premises, 29 C.F.R. 785.23 allows the employer and employee to reach a reasonable agreement as to the hours worked that fits the circumstances of the job in question and that could potentially exclude hours spent sleeping, eating, or pursuing personal business.
Subject to the above specific rules, it is permissible to have a wage agreement whereby employees are paid at a lower rate (at least minimum wage) for compensable sleeping time and other types of non-productive work time, as noted in 29 C.F.R. 778.318(b). However, any such agreement should be clearly expressed in a written wage agreement signed by the employee, and the time so distinguished must be carefully and exactly recorded. Further, if such work results in overtime hours, the overtime pay must be calculated according to the weighted average method of computing overtime pay, as provided in 29 C.F.R. 778.115 (see the topic "Employees Working at Two or More Rates" in the article "Calculating Overtime Pay" in this book). Due to the complexity of the overtime calculation method necessary and the recordkeeping involved, any company attempting this should have the agreement prepared with the assistance of an attorney experienced in this area of the law.
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