Wage and Hour Division (WHD)
Section 64e01: Hours Worked Issues in Section 14(c) Investigations
- Rehabilitative services. Time spent by workers with disabilities in rehabilitative services is not hours worked provided the services are not primarily for the purpose of increasing job productivity. This is the Department's position whether the services are given to a group of workers or to individual workers, and whether given at scheduled times or irregular intervals. The burden of identifying and segregating on the time records the time spent in rehabilitative services from hours worked rests with the facility. Some examples of rehabilitative services are counseling, psychological testing, mobility training, medical treatments, personal care, physical therapy, occupational therapy, recreation, and physical exercise.
- Down time.
- Down time refers to compensable time when the worker with a disability is on the job but is not producing because of factors not within his or her control, such as lack of work, equipment breakdowns, etc. (see also Regulations 29 CFR Part 785.14 regarding waiting time and the worker). Workers with disabilities, including those paid piece rates, are required to be paid for down time at a rate equal to their average hourly earnings during the most representative period, not to exceed a quarter. Employers must be consistent in the method used when computing the employee's average hourly earnings.
- As a practical matter, workers with disabilities are often unable to leave the facility because of special transportation arrangements or other reasons unique to their condition. The facility will often provide rehabilitation services to workers with disabilities during periods of extended down time and such time need not be considered compensable so long as: the services provided are not primarily for the purpose of increasing job productivity; such time is clearly identified, recorded, and segregated on time records; and the services are provided in an area away from the production area.
- Work samples/simulations. Work samples or simulations are activities that are structured to resemble the work performed in the facility but are performed away from the normal production area. These activities do not yield a product used to fulfill any of the facility's contracts and the facility does not derive any economic benefit from the product. They are supervised by non-production personnel and are a specific part of a well-defined program of rehabilitation.
- In 1985, the Advisory Committee on Sheltered Workshops asked the Department to review its position regarding the criteria used in determining whether work simulation constituted hours worked under the FLSA. As a result of this review, the Department determined that work simulation performed by workers with disabilities in work centers was predominately for the benefit of the disabled workers and that employers derived no immediate advantage from this activity.
- Accordingly, the Department's position since 1985 has been that work simulation performed by workers with disabilities receiving special minimum wages under Section 14(c) in work centers is not hours worked and compensation need not be paid for this activity, provided none of the material, goods, or services produced enters into the stream of commerce by being intermingled with the normal production of the employer. Typically, such materials would be discarded or recycled for future use in work simulation. This is the Department's position even if the purpose of the simulated work is to increase the productivity of the worker with disabilities.
- Transportation/travel time. The time spent by workers with disabilities being transported to and from the work site and their homes (including group homes and dormitories) by the employer at the beginning and end of the day is not hours worked. Such transportation retains the characteristic of "normal home to work travel." Additionally, employers may treat the transportation as an "other facility" for the purposes of section 3(m) (see Regulations 29 CFR Part 531.32(a) and FOH 64e02).
- When workers with disabilities report to a centralized pick-up spot to get a ride in their facility's vehicle to a remote job site that may not be readily accessible by public transportation, the Department's position is that this transportation retains the characteristic of "normal home to work travel." Hence it does not constitute hours worked so long as all of the following conditions are met: the workers with disabilities do not perform any work at the pick-up spot, they do not engage in any task that could be considered an integral part of their principal activity, and they retain the option to transport themselves to the job site.
- At times, because of their disabilities, the workers' option to transport themselves to the job site may be only theoretical. For example, the worker with a disability may not be eligible for a driver's license or his or her guardian may be unable to provide transportation. The fact that the transportation option is only theoretical does not change the Department's position that such travel is not hours worked.
- Any time spent in transportation provided by the facility between job sites during the course of the workday is hours worked (see Regulations 29 CFR Part 785.38) and the employee shall be paid a wage rate that is at least equal to his or her average hourly earnings during the most recently completed representative period, not to exceed a quarter. Employers must be consistent in the method used when computing the employee's average hourly earnings.
- Volunteers. It is important during the initial conference to identify any individuals, including workers with disabilities, that the firm considers to be volunteers during any part of the work day and verify the volunteer status (see FOH 64c04(e)).