Key Takeaways:

• Employers who have employees working overnight shifts when daylight saving time ends and standard time begins must pay these employees an additional hour.

• Employers also should review the total hours these employees worked that week to see whether the additional hour put these employees over 40 hours worked for that week. If this is the case, the additional hour worked due to the time change must be paid to these employees as overtime.

• Employers should be conscious of employee schedules, and payroll policies and procedures, to ensure compliance with the FLSA and to ensure proper compensation is provided to all employees affected by the daylight saving time return to standard time. Employers also can alter shifts to accommodate the time change brought by daylight saving time to account for the potential “extra” hour worked.

Department of Labor Daylight Saving Time FLSA Overview

The U.S. Department of Labor has released an advisory guideline to help employers ensure they are in compliance with the Fair Labor Standards Act’s (“FLSA”) wage and hour provisions as they pertain to daylight saving time. Per the DOL advisory: “Most states participate in daylight savings time. Those employees working the graveyard shift when Daylight Savings Time begins work one hour less because the clocks are set ahead one hour. Those employees working the graveyard shift when Daylight Savings Time ends work an extra hour because the clocks are set back one hour at 2:00 a.m.” See “FLSA Hours Worked Advisor”

The DOL advisory also provided the following example to illustrate this potential daylight saving time scenario in which an employer could find themselves with certain employees:

The scheduled shift starts at 11 p.m. and ends at 7:30 a.m. the next day; your employee works an eight-hour shift and receives a 30-minute lunch break.

• On the Sunday that daylight saving time starts at 2 a.m., the employee does not work the hour from 2 a.m. to 3 a.m. because at 2 a.m. all clocks are turned forward to 3 a.m. Thus, on this day, the employee only worked seven hours, even though the schedule was for eight hours.
• On the Sunday that daylight saving time ends at 2 a.m., the employee works the hour from 1 a.m. to 2 a.m. twice because at 2 a.m. all the clocks are turned back to 1 a.m. Thus, on this day the employee worked nine hours, even though the schedule only reflected eight hours.

See Id.

The FLSA requires that employees must be credited with all of the hours actually worked. Id. Therefore, per the DOL advisory, to ensure employers remain compliant with the FLSA, “if the employee is in a work situation similar to that described in the above example, he or she worked 7 hours on the day that Daylight Savings Time begins and 9 hours on the day that Daylight Savings Time ends. This assumes, of course, that the employee actually worked the scheduled shift as in our example.” Id.

Daylight Saving Time Effect on Overtime

Employers who have employees working overnight shifts when daylight saving time ends and standard time begins should pay these employees an additional hour. Employers should then moderate the amount of hours these employees worked that week to see if the additional hour worked puts these employees over 40 hours worked for that week. If this is the case, the additional hour worked due to the time change must be paid to these employees as overtime. Thus, if an employee who works an overnight shift typically works 40 hours in a work week, they will inadvertently work 41 hours when daylight saving time ends in the fall. Therefore, the FLSA requires that an employee in this situation be compensated for all hours worked, meaning that this one hour of work earned by the employee due to the time change will likely be credited as overtime pay.

Incorporation of Daylight Saving Time into Timekeeping and Payroll Systems

With today’s technology, certain timekeeping and payroll systems provide services that function to automatically adjust hours for daylight saving time. For example, isolved Timeforce I and II have an administrative setting that allows for timecards to be auto-adjusted for daylight saving time when daylight saving time occurs. Additionally, these systems also contain administrative settings that allow for the daylight saving time adjustment to not affect time cards for those employees that work in states/time zones that do not observe daylight saving time. Furthermore, the Team Software by Workwave payroll and timekeeping system also allows for a daylight saving time update to adapt to changes between daylight saving time and standard time.

Practical Steps Employers and HR Should Take Before Daylight Saving Time Ends on November 5

Employers and HR representatives should review their company handbooks, as well as current payroll policies and procedures, in order to ensure they are fully complying with this daylight saving time wage and hour regulation. Additionally, employers and HR representatives must be conscious of a potential additional hour worked by employees when the time changes in calculating these employees’ potential overtime compensation for that week. Furthermore, employers can alter overnight employees’ shift times on the days when daylight saving time affects hours worked to avoid the “extra” hour worked in November, as well as the “loss” of an hour worked in March. Ultimately, employers and HR representatives must validate employee schedules and make sure that all employees are credited and compensated for all hours worked, even if affected by the time change that daylight saving time provides. Employers should also be conscious of state-specific daylight saving time laws based on the state they are located in. If you have any questions, please reach out to one of our qualified Goldberg Segalla attorneys in the employment law group of our firm.

For more information or immediate guidance, contact:

• Andrew F. Beck
• Caroline J. Berdzik
• Christopher P. Maugans
• Scott R. Green
• Angela A. Cronk
• Or another member of the Employment and Labor practice