8.5

Reimbursements & idle time

Why reimbursed expenses and idle-time pay stay outside the regular rate

An employer that reimburses an employee for money spent on the employer's behalf — not money the employee would have spent anyway — keeps that payment outside the regular rate, because it is not compensation for hours worked at all. § 778.217 excludes reimbursement for the actual or reasonably approximate cost of business expenses: supplies, tools, or equipment bought for the job; uniforms or special clothing the employer requires, along with laundering or repair; “over the road” transportation and living expenses; a reasonable “supper money” payment when a day-shift employee is asked to keep working into the evening; and the temporary extra home-to-work travel cost of a relocated plant or an unusual reporting site. That list is illustrative, not exhaustive, but the ceiling is the actual expense — a “reimbursement” that runs disproportionately larger than what was actually spent has the excess pulled back into the regular rate, though a travel reimbursement that stays within the Federal Travel Regulation or IRS per diem figures is treated as per se reasonable. The exclusion also has a floor: the expense has to be the employer's, not the employee's own. Covering an employee's ordinary commute, lunch, or rent is not reimbursement in this sense, and paying it — or furnishing it, as with free meals or free housing — raises the regular rate the same as any other compensation.

Pay for idle time follows a related but separate rule, and it depends on the absence being genuinely occasional. § 778.218 excludes payments for periods when an employee is out on vacation, holiday, illness, a shortage of work, or “other similar cause,” as long as the amount is approximately what the employee normally earns over a similar stretch of time — because the payment substitutes for earnings rather than compensating for hours worked, it can be excluded from the regular rate, and by the same logic none of it may be credited toward overtime pay actually owed. The exclusion is narrow: it reaches only absences that are infrequent, sporadic, or unpredictable — jury duty, a funeral, a weather closure, voting, military or family medical leave are the kind of “similar cause” the rule has in mind. It does not reach a regularly scheduled day of rest, a routine reduction in the work schedule, or an ordinary temporary layoff, none of which becomes a “vacation” or a “shortage of work” just because the employee is paid for it. This is different from the non-productive hours covered in Chapter 6 — on-call time, waiting time, or travel that counts as hours worked despite involving little activity. § 778.223 treats pay for those hours as compensation for work like any other, folded into the regular rate in the ordinary way, unless the payment separately qualifies as one of the occasional absences described above.

A related pattern covers an employee entitled to paid leave who forgoes it and works instead. Under § 778.219, if the employee receives both normal pay for the hours actually worked and a payment approximately equivalent to normal earnings for the leave given up — whether paid out in the same period or later as a lump sum — the portion allocable to the forgone leave can be excluded from the regular rate and, again, cannot be credited toward any overtime premium the hours worked generate. The dividing line is what the payment is tied to. A true forgone-holiday payment pays the idle-holiday amount regardless of whether the day is worked, on top of ordinary pay for the hours actually worked. A holiday premium is different: it is paid only for hours actually worked on the holiday, at a stepped-up rate, and when that rate is at least time and one-half the employee's usual rate it counts as an overtime premium under section 7(e)(6) — one the employer can credit toward the overtime it owes.

Key terms

reimbursement for expensesidle timeother similar causeforgone holidayunused leavenon-productive hours