Workers in live-in facilities required to sleep over, and who have duties at night, should be paid for such so-called “sleep time,” says a federal court in recent decision handed down in Texas. There, the live-in facility corporation required its staff to stay overnight. Yet, none were paid for their sleep time between 11 p.m. and 7 a.m., despite having to tend to the live-in residents multiple times in the wee hours. Boman v. All the Little Things Count, LLC et. al., No. 3:12-CV-00077 (D. Tex. April 24, 2013). The employee involved in the Texas can had signed an employment contract requiring her to sleep over Monday through Thursday evenings, unpaid. However, the Court invalidated the agreement. The Court held the contract unreasonable, under Department of Labor Regulation 29 C.F.R. 285.23, which helps enforce the Fair Labor Standards Act (FLSA). By the way, FLSA rights cannot be easily waived. The regulation requires any waiver to be reasonable and the Court found it unfair and thus invalid. Many employees bullied by employers who claim that employees have waived their wage rights, in some employment contract, would be wise to consult a lawyer also. That paper may be worthless. In Boman v. All the Little Things Count, LLC, the court said that when defining work: All the little things count. On the one hand residential workers, who live on an employer’s premises at least five days or nights per week, and who have uninterrupted sleep time, are not owed wages. Opinion Letter Fair Labor Standards Act (FLSA), WH–505, 1981 WL 179033 (Dep’t of Labor Feb. 3, 1981). Here, the live-in employee slept over only four nights. More importantly, she often had to get up and do things for the employer’s benefit. As a result, the live-in employee was entitled to be paid for her overnight hours. Lebau & Neuworth recently prevailed on summary judgment in a case where we represented three live-in residential counselors/companions. The clients not only recovered their owed overtime and penalty damages, they were also awarded their attorney fees and costs. Contact us if you think you are owed wages.
