5-1-12; Can I/should I permit my workers to sleep or even nap on the job or, as an accommodation, during off hours between shifts?

We were asked the question by a reader and wanted to convey some thoughts. We feel there are some specific legal concerns about staffers sleeping at a work facility.

Our main concern as defense lawyers is the concern that if someone were to get hurt before, during or after sleeping, you would want to ramp up your accident investigation. To the extent you allow workers to use rooms to sleep in, you are almost certainly expanding WC exposure, even though they aren’t paid while sleeping.

You want to insure you are confirming for such workers and have them agree

•           They are asking for and being given sleeping rooms on a purely voluntary basis;

•           They aren’t on the clock and

•           They are not being paid or entitled to any pay while sleeping (if that is accurate).

If there is any chance they can claim they are on the clock, you are going to rapidly run afoul of FLSA or have to pay them OT while sleeping. If you have FLSA concerns, please don’t guess, send a reply and get solid legal counsel from KC&A.

Please note it may also be confusing and difficult to manage the issue of waking a sleeping worker to have them pitch in during an emergency. If that occurs on a regular basis, you may have to pay OT, in the right situation.

We also feel you are going to have to carefully outline whether your workers are allowed to sleep or take sleep breaks while on duty.

We also feel you should consider clearly promulgated rules about who is allowed in a room while a worker is sleeping in it.

If the sleep breaks are voluntary, we have a form you can use to confirm that fact. It may limit or alleviate liability. If you are interested, send a reply.