fair labor standards act pittsburgh, pennsylvania 2015

Fair Labor Standards Fair Labor Standards ActAct

Pittsburgh, PennsylvaniaPittsburgh, Pennsylvania

20152015

Authorship CreditsAuthorship Credits

Will Aitchison, Esq. Will Aitchison, Esq. Aitchison and VickAitchison and Vick

3021 NE Broadway3021 NE Broadway

Portland, Oregon 97232Portland, Oregon 97232

Christina L. Corl, Esq.Christina L. Corl, Esq.NFOP Associate General CounselNFOP Associate General Counsel

Crabbe, Brown, & James, LLPCrabbe, Brown, & James, LLP

500 South Front Street, Suite 1200500 South Front Street, Suite 1200

Columbus, Ohio 43215Columbus, Ohio 43215

FLSA OverviewFLSA Overview

A Brief HistoryA Brief History

Donning and DoffingDonning and Doffing

Compensatory TimeCompensatory Time

What is Compensable?What is Compensable?

Calculating The Regular Rate of PayCalculating The Regular Rate of Pay

ExemptionsExemptions

DISCLAIMERDISCLAIMER

Nothing contained in this Seminar is Nothing contained in this Seminar is intended to be legal advice. This Seminar intended to be legal advice. This Seminar is an overview of the FLSA. Before making is an overview of the FLSA. Before making a claim or taking a position under any a claim or taking a position under any circumstances a thorough review of all circumstances a thorough review of all applicable laws, regulations, policies, applicable laws, regulations, policies, contract provisions, and any other contract provisions, and any other relevant authorities should be conducted, relevant authorities should be conducted, including consulting with experts and including consulting with experts and professionals in the jurisdiction for advice professionals in the jurisdiction for advice and counsel. and counsel.

FLSA HistoryFLSA History

Depression Era legislation passed as Depression Era legislation passed as part of economic recovery effortspart of economic recovery efforts

Passed in 1938 as part of the New Passed in 1938 as part of the New DealDeal

Initially limited to private sectorInitially limited to private sector– Established minimum wageEstablished minimum wage– Established overtime payEstablished overtime pay– Prohibited child laborProhibited child labor

Extended to government employees Extended to government employees in 1974in 1974

DONNING AND DOFFINGDONNING AND DOFFING

Donning and DoffingDonning and Doffing

Under the FLSA, compensable time Under the FLSA, compensable time “includes all pre-shift and post-shift “includes all pre-shift and post-shift activities which are an integral part of the activities which are an integral part of the employee’s principal activity or which are employee’s principal activity or which are closely related to the performance of the closely related to the performance of the principal activity…”principal activity…”

IBP, Inc. v. AlvarezIBP, Inc. v. Alvarez, 546 U.S. 21 (2005), 546 U.S. 21 (2005)– D & D necessary protective gear D & D necessary protective gear YESYES– Waiting to Doff Waiting to Doff YESYES– Walking to and from D & D area Walking to and from D & D area YESYES– Waiting to Don Waiting to Don NO NO

Donning and Doffing Donning and Doffing (continued)(continued)

Continuous workday analysisContinuous workday analysis

– Donning necessary protective gear is Donning necessary protective gear is essential to the principal activity essential to the principal activity

– Waiting to don the protective gear is Waiting to don the protective gear is one step removed and may not always one step removed and may not always be necessarybe necessary


Martin v. City of RichmondMartin v. City of Richmond, 2007 WL , 2007 WL 2317590 (N.D.Cal. 2007)2317590 (N.D.Cal. 2007)– Vests, guns, pepper spray, etc. are Vests, guns, pepper spray, etc. are

indispensible to the performance of a indispensible to the performance of a police officer’s job BUTpolice officer’s job BUT

– Uniforms are not:Uniforms are not: ““a police officer’s uniform, in and of itself, a police officer’s uniform, in and of itself,

does not assist the officer in performing his does not assist the officer in performing his duties.” duties.”


Abbe v. City of San DiegoAbbe v. City of San Diego, 2007 WL , 2007 WL 4146696 (S.D.Cal. 2007)4146696 (S.D.Cal. 2007)– Disagreed with the Disagreed with the MartinMartin case insofar as case insofar as

the issue is not whether the uniform is the issue is not whether the uniform is indispensible, it is indispensible indispensible, it is indispensible

– Relevant inquiry is whether the donning Relevant inquiry is whether the donning and doffing at work is indispensible and doffing at work is indispensible

– Since officers had the option to don and Since officers had the option to don and doff at home, donning and doffing was not doff at home, donning and doffing was not compensablecompensable


Lemmon v. City of San LeandroLemmon v. City of San Leandro, 2007 , 2007 WL 4326743 (N.D.Cal. 2007)WL 4326743 (N.D.Cal. 2007)– Uniforms are indispensibleUniforms are indispensible– Uniforms are a part of the continuum of Uniforms are a part of the continuum of

forceforce– Uniforms afford power and deferenceUniforms afford power and deference– Mandatory D & D at work is compensableMandatory D & D at work is compensable– BUT, there is no specific requirement in BUT, there is no specific requirement in

the FLSA that preliminary or postliminary the FLSA that preliminary or postliminary activity take place on employers premises activity take place on employers premises


Dager v. City of Phoenix,Dager v. City of Phoenix, Slip Copy, 2009 WL Slip Copy, 2009 WL 531864 (D. Ariz., 2009)531864 (D. Ariz., 2009)– although tasks may be integral and indispensable although tasks may be integral and indispensable

to a principal activity, “employees cannot recover to a principal activity, “employees cannot recover for otherwise compensable time if it is for otherwise compensable time if it is de de minimis.”minimis.”

– ““When the matter in issue concerns only a few When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded working hours, such trifles may be disregarded because split-second absurdities are not justified because split-second absurdities are not justified by the actualities of working conditions or by the by the actualities of working conditions or by the policy of the Fair Labor Standards Act.” policy of the Fair Labor Standards Act.”


The Ninth Circuit has held that:The Ninth Circuit has held that:– An important factor in determining An important factor in determining

whether a claim is whether a claim is de minimisde minimis is the is the amount of daily time spent on the amount of daily time spent on the additional work.additional work.

– There is no precise amount of time that There is no precise amount of time that may be denied compensation as may be denied compensation as de de minimisminimis and no rigid rule can be applied and no rigid rule can be applied with mathematical certainty...rather, with mathematical certainty...rather, common sense must be applied to the common sense must be applied to the facts of each case.facts of each case.


The law of the Ninth Circuit precludes The law of the Ninth Circuit precludes compensation for donning and doffing compensation for donning and doffing where an employee has the “option and where an employee has the “option and ability” to don and doff at home.ability” to don and doff at home.

Because Phoenix patrol officers have the Because Phoenix patrol officers have the “option and ability” to don and doff “option and ability” to don and doff uniforms and protective gear at home, uniforms and protective gear at home, these activities are preliminary and these activities are preliminary and postliminary to the principal activity of postliminary to the principal activity of police work and therefore are non-police work and therefore are non-compensable under the FLSA. compensable under the FLSA.


Although a police uniform may assist an officer in his or her law Although a police uniform may assist an officer in his or her law enforcement work to the extent a uniform “is often sufficient enforcement work to the extent a uniform “is often sufficient by itself to induce compliant behavior” or “contributes to by itself to induce compliant behavior” or “contributes to officer safety,” that argument “proves too much.” The logic officer safety,” that argument “proves too much.” The logic supporting this contention-that a uniform's ability to identify its supporting this contention-that a uniform's ability to identify its wearer somehow renders that uniform necessary to wearer somehow renders that uniform necessary to employment-could extend to the employees of almost any employment-could extend to the employees of almost any profession falling within the FLSA's purview. profession falling within the FLSA's purview. For example, a For example, a municipal refuse collector who dons a brightly-colored municipal refuse collector who dons a brightly-colored jumpsuit adorned with reflective tape may be safer jumpsuit adorned with reflective tape may be safer from passing vehicles and toxins contained in refuse as from passing vehicles and toxins contained in refuse as a result of the suit, but that does not make such a a result of the suit, but that does not make such a jumpsuit “necessary” to the job of refuse collection.jumpsuit “necessary” to the job of refuse collection. Similarly, the “continuum of force” that plaintiffs believe Similarly, the “continuum of force” that plaintiffs believe renders the uniform necessary to an officer's job duties may renders the uniform necessary to an officer's job duties may certainly assist a patrol officer in performing some of those certainly assist a patrol officer in performing some of those duties ( duties ( e.g.,e.g., by providing a psychological advantage or by providing a psychological advantage or diminishing resistance), but such assistance “is necessary to diminishing resistance), but such assistance “is necessary to the performance of an officer's duties only in the insufficient the performance of an officer's duties only in the insufficient sense that uniforms identify many types of workers.” sense that uniforms identify many types of workers.”


Maciel v. City of Los AngelesMaciel v. City of Los Angeles, 569 , 569 F.Supp.2d 1038 (C.D.Cal., 2008). F.Supp.2d 1038 (C.D.Cal., 2008). – First, it is beyond dispute that the donning and First, it is beyond dispute that the donning and

doffing of the protective gear is, at both broad doffing of the protective gear is, at both broad and basic levels, done for the benefit of LAPD. and basic levels, done for the benefit of LAPD. These Plaintiff-performed activities allow the These Plaintiff-performed activities allow the LAPD to ensure that officers are kept safe, and LAPD to ensure that officers are kept safe, and allow the officers to complete their principal allow the officers to complete their principal duty of enforcing the laws of the land. As an duty of enforcing the laws of the land. As an example, without the contents of the Sam example, without the contents of the Sam Browne belt, an officer would not have Browne belt, an officer would not have handcuffs with which to subdue suspects. handcuffs with which to subdue suspects.


Second, most officers are required to wear their Second, most officers are required to wear their personal safety equipment while on duty. Failure personal safety equipment while on duty. Failure to do so can result in discipline. For all practical to do so can result in discipline. For all practical purposes, the equipment must be donned and purposes, the equipment must be donned and doffed at the assigned station. Officers are doffed at the assigned station. Officers are discouraged from wearing their uniform while off discouraged from wearing their uniform while off duty. Moreover, in order to put on the Kevlar vest, duty. Moreover, in order to put on the Kevlar vest, the officer must first remove the uniform shirt, or the officer must first remove the uniform shirt, or more logically, wait to put the shirt on until they more logically, wait to put the shirt on until they are at the station.are at the station.

Finally, a loaded firearm, as well as pepper spray, Finally, a loaded firearm, as well as pepper spray, are both held within the Sam Browne belt, it could are both held within the Sam Browne belt, it could pose a safety risk to require officers to take this pose a safety risk to require officers to take this weapon home should the officer wish to leave the weapon home should the officer wish to leave the equipment at the station.equipment at the station.


In determining whether the time to don In determining whether the time to don and doff is and doff is de minimisde minimis, it is not merely , it is not merely the time involved that is considered, but the time involved that is considered, but also the size of the aggregate claim and also the size of the aggregate claim and the regularity with which the activity the regularity with which the activity takes place.takes place.1.1. the practical administrative difficulty of the practical administrative difficulty of

recording the additional time; recording the additional time;

2.2. the aggregate amount of compensable time; the aggregate amount of compensable time; and and

3.3. the regularity of the additional work. the regularity of the additional work.


Assuming for the purpose of this analysis Assuming for the purpose of this analysis that it takes Plaintiff five minutes per shift that it takes Plaintiff five minutes per shift for the donning and doffing activity, at for the donning and doffing activity, at Plaintiff's current salary, the uncompensated Plaintiff's current salary, the uncompensated time would be $3.33 per shift, double if time would be $3.33 per shift, double if assuming ten minutes per shift. assuming ten minutes per shift. Compounding this time for every shift for Compounding this time for every shift for the two years of uncompensated time, the the two years of uncompensated time, the aggregate claim would exceed $1000.00. aggregate claim would exceed $1000.00. This amount could not be considered This amount could not be considered minuscule in light of Plaintiff's salary. minuscule in light of Plaintiff's salary.


Bamonte v. City Of Mesa, Bamonte v. City Of Mesa, Slip Copy, 2008 Slip Copy, 2008 WL 1746168 (D.Ariz., 2008).WL 1746168 (D.Ariz., 2008).

– Because the Plaintiffs have failed to establish Because the Plaintiffs have failed to establish the presence of a genuine issue of material the presence of a genuine issue of material fact concerning the nature of their duties, the fact concerning the nature of their duties, the court concludes that they have both the option court concludes that they have both the option and the ability to don and doff their uniforms and the ability to don and doff their uniforms and protective gear at home. Consequently, and protective gear at home. Consequently, such donning and doffing are preliminary and such donning and doffing are preliminary and postliminary activities respectively, the postliminary activities respectively, the performance of which does not require performance of which does not require compensation. compensation.


Sandifer v. United States Steel CorpSandifer v. United States Steel Corp, No. 12-417 , No. 12-417 (U.S. Supreme Court 2014). Section 203(o) (U.S. Supreme Court 2014). Section 203(o) provides an exception from the FLSA for the provides an exception from the FLSA for the time spent changing “clothes” if employees are time spent changing “clothes” if employees are covered by a collective bargaining agreement covered by a collective bargaining agreement and if either the agreement or a pattern and and if either the agreement or a pattern and practice does not require compensation for the practice does not require compensation for the changing time. “If an employee devotes the vast changing time. “If an employee devotes the vast majority of that time to putting on and off majority of that time to putting on and off equipment or other non-clothes items, the entire equipment or other non-clothes items, the entire period would not qualify as “time spent in period would not qualify as “time spent in changing clothes” under §203(o), even if some changing clothes” under §203(o), even if some clothes items were also donned and doffed. clothes items were also donned and doffed.


But if the vast majority of the time is But if the vast majority of the time is spent in donning and doffing “clothes” as spent in donning and doffing “clothes” as defined here, the entire period qualifies, defined here, the entire period qualifies, and the time spent putting on and off and the time spent putting on and off other items need not be subtracted. Here, other items need not be subtracted. Here, the Seventh Circuit agreed with the the Seventh Circuit agreed with the District Court’s conclusion that the time District Court’s conclusion that the time spent donning and doffing safety glasses spent donning and doffing safety glasses and earplugs was minimal. ‘Clothes’ and earplugs was minimal. ‘Clothes’ denotes items that are both designed and denotes items that are both designed and used to cover the body and are commonly used to cover the body and are commonly regarded as articles of dress.”regarded as articles of dress.”

COMPENSATORY TIMECOMPENSATORY TIME

Compensatory TimeCompensatory Time

The courts are split on the employer’s The courts are split on the employer’s authority to deny comp time-off authority to deny comp time-off requestsrequests

Houston Police Officers’ Union, et al. v. City of Houston Police Officers’ Union, et al. v. City of HoustonHouston, 330 F.3d 298 (5, 330 F.3d 298 (5thth Cir. 2003) Cir. 2003)

– Employer comp time-off cap of 10% of total Employer comp time-off cap of 10% of total number of officers in unit permitted number of officers in unit permitted

Compensatory Time Compensatory Time (continued)(continued)

Mortensen v. County of SacramentoMortensen v. County of Sacramento, , 368 F.3d 1082 (9368 F.3d 1082 (9thth Cir. 2004) Cir. 2004)

– Employers cannot be forced to pay other Employers cannot be forced to pay other officers overtime in order to officers overtime in order to accommodate requests to use comp accommodate requests to use comp time-offtime-off


Beck v. City of Cleveland,Beck v. City of Cleveland, 390 F.3d 390 F.3d 912 (6912 (6thth Cir. 2004) Cir. 2004)– Unlimited discretion to deny comp time-Unlimited discretion to deny comp time-

off relieves employers of establishing off relieves employers of establishing undue disruption under the FLSAundue disruption under the FLSA

– Employers should be required to establish Employers should be required to establish factual showing of undue disruption factual showing of undue disruption


Christensen v. Harris CountyChristensen v. Harris County, 529 U.S. 576 , 529 U.S. 576 (2000)(2000)

– Nothing in the FLSA forbids an employer from Nothing in the FLSA forbids an employer from compelling an employee to use accrued comp compelling an employee to use accrued comp timetime


Employers cannot force employees to take Employers cannot force employees to take comp time in lieu of cashcomp time in lieu of cash

Employees cannot demand comp time in Employees cannot demand comp time in lieu of cashlieu of cash

UNLESS an agreement between the UNLESS an agreement between the employer and employees permits such and employer and employees permits such and the employee has not exceeded the FLSA the employee has not exceeded the FLSA maximum limitmaximum limit

FLSA maximum limit for LEOs is 480 hoursFLSA maximum limit for LEOs is 480 hours


Scott v. City of New YorkScott v. City of New York, Slip Copy, , Slip Copy, 2008 WL 4949343 (S.D.N.Y., 2008).2008 WL 4949343 (S.D.N.Y., 2008).– NYPD’s policy of denying overtime NYPD’s policy of denying overtime

opportunities based upon the officers’ opportunities based upon the officers’ election to receive cash as opposed to election to receive cash as opposed to compensatory time ruled not illegal. compensatory time ruled not illegal. Such decisions are discretionary, not Such decisions are discretionary, not discriminatory. discriminatory.


Heitmann v. ChicagoHeitmann v. Chicago, 2009 WL , 2009 WL 764155 (Ill. C.A.7, 2009)764155 (Ill. C.A.7, 2009)– Chicago P.D.’s practice of denying use of Chicago P.D.’s practice of denying use of

comp time without reason or comp time without reason or establishing undue disruption violated establishing undue disruption violated FLSA.FLSA.

Cashing OutCashing Out

§ 553.27 Payments for unused § 553.27 Payments for unused compensatory time.compensatory time.

(a) Payments for accrued (a) Payments for accrued compensatory time earned after April compensatory time earned after April 14, 1986, may be made at any time 14, 1986, may be made at any time and shall be paid at the regular rate and shall be paid at the regular rate earned by the employee at the time earned by the employee at the time the employee receives such the employee receives such payment.payment.

Cashing OutCashing Out

(b) Upon termination of employment, (b) Upon termination of employment, an employee shall be paid for unused an employee shall be paid for unused compensatory time earned after April compensatory time earned after April 14, 1986, at a rate of compensation not 14, 1986, at a rate of compensation not less than—less than—

(1) The average regular rate received (1) The average regular rate received by such employee during the last 3 by such employee during the last 3 years of the employee's employment, years of the employee's employment, oror

(2) The final regular rate received by (2) The final regular rate received by such employee, whichever is higher.such employee, whichever is higher.

WHAT IS COMPENSABLE?WHAT IS COMPENSABLE?

Compensable Time?Compensable Time?

Canine OfficersCanine Officers– Training timeTraining time YES YES– Feeding/grooming/veterinarian visits YESFeeding/grooming/veterinarian visits YES– Exercise timeExercise time YES YES – Commuting timeCommuting time

Most courts say NO unless dog is kenneled Most courts say NO unless dog is kenneled away from work and officer’s homeaway from work and officer’s home

Some courts say YES due to benefit of having Some courts say YES due to benefit of having additional time in marked unit “on patrol.”additional time in marked unit “on patrol.”

Compensable Time? Compensable Time? (continued)(continued)

Off duty details/moonlightingOff duty details/moonlightingNONO– Even if employer:Even if employer:

Maintains roster & eligibility lists;Maintains roster & eligibility lists; Selects personnel for jobs;Selects personnel for jobs; Negotiates pay;Negotiates pay; Collects administrative fees;Collects administrative fees; Receives officers’ pay directly;Receives officers’ pay directly; Enforces on-duty code of conduct; and,Enforces on-duty code of conduct; and, Enacts ordinances restricting details.Enacts ordinances restricting details.

Compensable Time? Compensable Time? (continued)(continued)

Court appearancesCourt appearances YES YES Physical fitness trainingPhysical fitness training NO NO Maintaining uniforms/equipmentMaintaining uniforms/equipment NO NO Paid leave NOPaid leave NO Commuting in take home vehicleCommuting in take home vehicle NO* NO* On-call timeOn-call time MAYBE MAYBE Mealtime MAYBEMealtime MAYBE Disciplinary hearings MAYBEDisciplinary hearings MAYBE

Take Home VehicleTake Home Vehicle

General travel to and from work is not General travel to and from work is not compensable. A police officer who is given a compensable. A police officer who is given a patrol car to drive home and use on personal patrol car to drive home and use on personal business is not working during the travel time business is not working during the travel time even where the radio must be left on so that even where the radio must be left on so that the officer can respond to emergency calls.the officer can respond to emergency calls.

Two exceptions:Two exceptions:– a custom or practice to compensate for drive timea custom or practice to compensate for drive time– the activities are an integral and indispensable part the activities are an integral and indispensable part

of the employment (e.g. responding to calls).of the employment (e.g. responding to calls).

Take Home Vehicle Take Home Vehicle (Continued)(Continued)

Adams v. U.S.Adams v. U.S., 471 F.3d 1321 (C.A. , 471 F.3d 1321 (C.A. Fed., 2006).Fed., 2006).– ““[C]ommuting done for the employer's [C]ommuting done for the employer's

benefit, under the employer's rules, is benefit, under the employer's rules, is noncompensable if the labor beyond the noncompensable if the labor beyond the mere act of driving the vehicle is mere act of driving the vehicle is de de minimis.minimis.””

On Call TimeOn Call Time

Cannon v. Vineland Housing AuthorityCannon v. Vineland Housing Authority, Slip , Slip Copy, 2008 WL 4372798 (D.N.J., 2008).Copy, 2008 WL 4372798 (D.N.J., 2008).– on-call time may be compensable under the on-call time may be compensable under the

Fair Labor Standards Act under two Fair Labor Standards Act under two circumstances: “if the employee is required to circumstances: “if the employee is required to remain on premises, or if the employee, remain on premises, or if the employee, although not required to remain on the although not required to remain on the employer's premises, finds his time on-call employer's premises, finds his time on-call away from the employer's premises is so away from the employer's premises is so restricted that it interferes with personal restricted that it interferes with personal pursuits.” pursuits.” Ingram v. County of Bucks,Ingram v. County of Bucks, 144 F.3d 144 F.3d 265, (3d Cir. 1998).265, (3d Cir. 1998).

On Call Time (Continued)On Call Time (Continued)

on-call time may be compensable under on-call time may be compensable under the following factors:the following factors:– whether the employee may carry a beeper or whether the employee may carry a beeper or

leave home;leave home;– the frequency of calls and the nature of the the frequency of calls and the nature of the

employer's demands;employer's demands;– the employee's ability to maintain a flexible the employee's ability to maintain a flexible

on-call schedule and switch on-call shifts; and,on-call schedule and switch on-call shifts; and,– whether the employee actually engaged in whether the employee actually engaged in

personal activities during on-call time.personal activities during on-call time.

MealtimeMealtime Wood v. City of ElginWood v. City of Elgin, Slip Copy, 2008 WL , Slip Copy, 2008 WL

4545334 (N.D.Ill., 2008).4545334 (N.D.Ill., 2008).

– Bona fide meal periods are generally not considered compensable work time under the FLSA.

– The “predominant benefits” test: A meal period is not work time if “the employee's time is not spent predominantly for the benefit of the employer.” FLSA requires remuneration for meal periods during which a police officer is unable comfortably and adequately to pass the mealtime because the officer's time or attention is devoted primarily to official responsibilities.

Disciplinary HearingsDisciplinary Hearings

Wetzel v. Town of OrangetownWetzel v. Town of Orangetown, Slip , Slip Copy, 2009 WL 690114 (S.D.N.Y. Copy, 2009 WL 690114 (S.D.N.Y. 2009).2009).

– Under the FLSA, an employee is entitled Under the FLSA, an employee is entitled to compensation for time spent at to compensation for time spent at disciplinary hearing, but not time spent disciplinary hearing, but not time spent preparing for the hearing. preparing for the hearing.

CALCULATING THECALCULATING THE

REGULAR RATE OF PAYREGULAR RATE OF PAY

What is “work”?What is “work”?

Tennessee Coal, Iron & R. Co. v. Muscoda Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123,Local No. 123, 321 U.S. 590 (1944). 321 U.S. 590 (1944). – ““an activity constitutes ‘work,’ and is an activity constitutes ‘work,’ and is

compensable under the FLSA, if it compensable under the FLSA, if it involves ‘physical or mental exertion involves ‘physical or mental exertion (whether burdensome or not),’ or the (whether burdensome or not),’ or the loss of an employee's time, that is loss of an employee's time, that is ‘controlled or required by the employer ‘controlled or required by the employer and pursued necessarily and primarily and pursued necessarily and primarily for the benefit of the employer and his for the benefit of the employer and his business.’” business.’”

What is “work”?What is “work”?

Plaintiffs must prove that they were Plaintiffs must prove that they were permitted to or suffered work permitted to or suffered work without compensation. Courts have without compensation. Courts have interpreted this to mean that interpreted this to mean that plaintiffs must prove:plaintiffs must prove:

1.1. the employees worked overtime the employees worked overtime without compensation; and, without compensation; and,

2.2. the employer knew or should have the employer knew or should have known of the overtime work. known of the overtime work.

What is “Work”?What is “Work”?

Reich v. Dept of Conservation and Nat. Reich v. Dept of Conservation and Nat. Res.Res., 28 F.3d 1976, 1082 (11th Cir. , 28 F.3d 1976, 1082 (11th Cir. 1994).1994).– employees were not permitted to work more employees were not permitted to work more

than 40 hours/week by Department rulethan 40 hours/week by Department rule– supervisors allowed employees to work more supervisors allowed employees to work more

than 40 hours to “get the work done”than 40 hours to “get the work done”– employees were not allowed to report the employees were not allowed to report the

extra time and were not paidextra time and were not paid– Court ruled in favor of employeesCourt ruled in favor of employees

Calculating O.T.Calculating O.T.

It is the employer’s obligation to It is the employer’s obligation to inquire about the work and cannot inquire about the work and cannot stand idle while allowing employees stand idle while allowing employees to work overtime without the to work overtime without the required compensation.required compensation.

Even if employees volunteer to work Even if employees volunteer to work more than 40 hours, they must be more than 40 hours, they must be paid overtime, not straight time.paid overtime, not straight time.


If an employee does not notify an If an employee does not notify an employer or purposely prevents an employer or purposely prevents an employer from acquiring knowledge employer from acquiring knowledge of the employee's overtime work, the of the employee's overtime work, the employer's failure to pay overtime is employer's failure to pay overtime is not a violation of the FLSA. not a violation of the FLSA.


Scott v. City of New YorkScott v. City of New York, 2009 WL , 2009 WL 507035 (S.D.N.Y., 2009).507035 (S.D.N.Y., 2009).– Non-overtime hours that are consistent Non-overtime hours that are consistent

and anticipated must be included in the and anticipated must be included in the regular rate calculation, regardless of regular rate calculation, regardless of whether they are included on a duty whether they are included on a duty chart. However, the regular rate of pay chart. However, the regular rate of pay must be determined based on an must be determined based on an officer's non-overtime work period. officer's non-overtime work period.

The FormulaThe Formula

Compensation Compensation ÷ Straight Time Hours ÷ Straight Time Hours ==

Regular Rate of PayRegular Rate of Pay

$1000 $1000 ÷ 40 Hrs = $25/hr÷ 40 Hrs = $25/hr

What Constitutes What Constitutes Compensation?Compensation?

Shift DifferentialsShift Differentials Specialty Assignment PaySpecialty Assignment Pay Longevity PayLongevity Pay Hazardous Duty PayHazardous Duty Pay Educational PayEducational Pay Working out of capacity/classificationWorking out of capacity/classification Shift trading - Shift trading - Each officer credited for their Each officer credited for their

own hoursown hours Retroactive pay raisesRetroactive pay raises Disciplinary and other deductions may notDisciplinary and other deductions may not be used to reduce the rate of paybe used to reduce the rate of pay

What is Excluded From What is Excluded From Compensation?Compensation?

Overtime PayOvertime Pay Holiday PayHoliday Pay Sick PaySick Pay Expense Reimbursements (e.g., Expense Reimbursements (e.g.,

Travel, Clothing, etc.)Travel, Clothing, etc.) Employer Contributions to PensionEmployer Contributions to Pension Insurance PremiumsInsurance Premiums

““Gap Time”Gap Time”

Koelker v. Mayor and City Council of Koelker v. Mayor and City Council of Cumberland (Maryland)Cumberland (Maryland), 599 , 599 F.Supp.2d 624 (D.Md., 2009).F.Supp.2d 624 (D.Md., 2009).

– Violations of negotiated overtime Violations of negotiated overtime thresholds are not actionable under the thresholds are not actionable under the FLSA unless the FLSA thresholds have FLSA unless the FLSA thresholds have been violated.been violated.

““Gap Time” (continued)Gap Time” (continued)

EXAMPLE:EXAMPLE:– If an employer agrees to pay overtime for If an employer agrees to pay overtime for

all hours worked in excess of 35 hours, all hours worked in excess of 35 hours, there is no claim under the FLSA for there is no claim under the FLSA for failing to pay overtime premium for the failing to pay overtime premium for the hours worked between 35 and 40 hours.hours worked between 35 and 40 hours.

– The overtime premium paid between 35 The overtime premium paid between 35 and 40 hours cannot be used to calculate and 40 hours cannot be used to calculate the regulate rate of pay under the FLSA. the regulate rate of pay under the FLSA.

EXEMPTIONSEXEMPTIONS

Who Is Exempt?Who Is Exempt?

Salaried employeesSalaried employees

Highly compensated employeesHighly compensated employees

Executive employeesExecutive employees

Administrative employeesAdministrative employees

Salaried EmployeesSalaried Employees

Deductions of less than full days for Deductions of less than full days for absencesabsences– Sick daysSick days– Personal leavePersonal leave– Misconduct suspensionsMisconduct suspensions

Deductions for jury serviceDeductions for jury service A continued practice of such A continued practice of such

deductionsdeductions

Highly Compensated Highly Compensated EmployeesEmployees

Total annual salary of more than $100kTotal annual salary of more than $100k– Min. $455/wk excluding fringe benefitsMin. $455/wk excluding fringe benefits– Without overtimeWithout overtime

““Primary” duties include Primary” duties include ONEONE of the following: of the following:– Management of the agency;Management of the agency;– Customarily and regularly direct the work of Customarily and regularly direct the work of

two or more employees; ortwo or more employees; or– Hiring and firing of employees and Hiring and firing of employees and

significant influence on other personnel significant influence on other personnel decisions.decisions.

Executive EmployeesExecutive Employees


““Primary” duties include Primary” duties include ALLALL of the following: of the following:– Management of the agency;Management of the agency;– Customarily and regularly direct the work Customarily and regularly direct the work

of two or more employees; orof two or more employees; or– Hiring and firing of employees and Hiring and firing of employees and

significant influence on other personnel significant influence on other personnel decisions.decisions.

Administrative Administrative EmployeesEmployees


““Primary” duties include Primary” duties include BOTHBOTH of the of the following:following:– The performance of office or non-manual work The performance of office or non-manual work

directly related to the management or general directly related to the management or general business operations; and,business operations; and,

– The exercise of discretion and independent The exercise of discretion and independent judgment with respect to “matters of significance” judgment with respect to “matters of significance” (tax, finance, insurance, quality control, purchasing, (tax, finance, insurance, quality control, purchasing, HR, PR….)HR, PR….)

The Exception to the The Exception to the ExemptionExemption

Public safety employees are exempt Public safety employees are exempt from the exemptions as long as their from the exemptions as long as their “primary” duties do not involve “primary” duties do not involve “management of the enterprise” or “management of the enterprise” or work “related to the management or work “related to the management or general business operations of the general business operations of the employer”.employer”.

Who is Exempt?Who is Exempt?

Crawford v. Lexington-Fayette Urban Crawford v. Lexington-Fayette Urban County GovernmentCounty Government, WL 2598345, WL 2598345(E.D.Ky., 2008).(E.D.Ky., 2008).– This court must determine what

constitutes the “principal, main, major or most important duty that the employee performs.”


Rooney v. Town of GrotonRooney v. Town of Groton, 577 , 577 F.Supp.2d 513 (D.Mass., 2008).F.Supp.2d 513 (D.Mass., 2008).– Police lieutenant deemed exempt from Police lieutenant deemed exempt from

FLSA due to:FLSA due to: Salary, supervisory capacity, discretion in Salary, supervisory capacity, discretion in

answering calls, discretion in disposing of cases, answering calls, discretion in disposing of cases, recommendations for promotions, hiring and recommendations for promotions, hiring and firing, lack of actual police work.firing, lack of actual police work.

First responder exception applies the same First responder exception applies the same analysis. Primary duty as supervisor will prevail.analysis. Primary duty as supervisor will prevail.


Mullins v. City of New YorkMullins v. City of New York, Slip Copy, , Slip Copy, 2008 WL 4620709 (S.D.N.Y., 2008).2008 WL 4620709 (S.D.N.Y., 2008).– The “bona fide executive” exception to The “bona fide executive” exception to

FLSA applies only to employees who have FLSA applies only to employees who have “the authority to hire or fire other “the authority to hire or fire other employees or whose suggestions and employees or whose suggestions and recommendations as to the hiring, firing, recommendations as to the hiring, firing, advancement, promotion or any other advancement, promotion or any other change of status of other employees are change of status of other employees are given particular weight.” This is known as given particular weight.” This is known as the hire/fire test. the hire/fire test.

Mullins Mullins (continued)(continued)

To determine whether an employee's To determine whether an employee's suggestions and recommendations are suggestions and recommendations are given “particular weight,” factors to be given “particular weight,” factors to be considered include, but are not limited to, considered include, but are not limited to, whether it is part of the employee's job whether it is part of the employee's job duties to make such suggestions and duties to make such suggestions and recommendations; the frequency with recommendations; the frequency with which such suggestions and which such suggestions and recommendations are made or requested; recommendations are made or requested; and the frequency with which the and the frequency with which the employee's suggestions and employee's suggestions and recommendations are relied upon.” recommendations are relied upon.”

Mullins Mullins (continued)(continued)

““An employee's suggestions and An employee's suggestions and recommendations may still be deemed to recommendations may still be deemed to have ‘particular weight’ even if a higher have ‘particular weight’ even if a higher level manager's recommendation has level manager's recommendation has more importance and even if the more importance and even if the employee does not have authority to make employee does not have authority to make the ultimate decision as to the employee's the ultimate decision as to the employee's change in status.” Proof of the hire/fire change in status.” Proof of the hire/fire test must reflect “actual practices” rather test must reflect “actual practices” rather than written job descriptions and duties.than written job descriptions and duties.

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FLSA Compliance ModuleFLSA Compliance Module

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fair labor standards act pittsburgh, pennsylvania 2015

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