suffer to work presentation

FAIR LABOR STANDARDS

ACT

BY GARY JABURG

Suffer to work and Permit to work

(Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944).)

In 1944, Tennessee Coal and Iron & Railroad

Company, who operated 12 mines, did not pay

workers for preparation and travel time. They were

sued by Muscoda Local 123 and the case was

eventually decided by the United States Supreme

court.

FACTS OF THE CASE


The miners spent time at the surface obtaining and/or returning

tools, lamps and carbide as well as checking in and out.

They were required to report at a loading platform and wait for

their turn to ride down the mine shaft on a skip.

The operation of the skips were under the strict control and

supervision of the employer at all times. Regular schedules

were fixed. Loading and unloading of the Skips were

supervised; the speed of the trips was regulated; and the

conduct of the miners during the rides was prescribed.


This case formed the basis for “Suffer to work or

permit to work”. The Supreme Court Stated that

employees subject to FLSA need to be paid for

work which “are performed on the premises of the

employer, in the furtherance of the employer's

business, with no benefits to the employee (except

to aid him in the performance of work for the

employer), under conditions created and controlled

by the employer”.


The employer controlled the work and benefitted from

the employee’s time. The ruling further stated that

employees are to be paid when they “… are required

to report and to remain at a given place awaiting a call

for emergency or other casual service and . . . they are

paid for the hours during which they wait as well as

those in which they actually put forth physical or

mental effort.”

(Armour & Co. v. Wantock, 323 U.S. 126 (1944); Skidmore v. Swift, 323 U.S. 134 (1944)

In a Subsequent 1944 case which involved

firefighters, they were required to be on the

employer’s job site, subject to being on call, but not

engaged in specific work. Generally, they were not at

liberty to leave the premises. While they were paid for

time that they performed actual work, they were not

paid for their on call time. The Supreme Court ruled

that there need be no physical or mental exertion to

qualify as work. In this case, all on-call hours, are

hours worked.

(Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946).)

The work week ordinarily includes “all the time during

which an employee is necessarily required to be on

the employer’s premises, on duty or at a prescribed

work place”.

29 CFR § 785.7. and §785.34.

The Portal to Portal Act did not change the rule,

except to provide an exception and clarification for

certain preliminary and postliminary activities.

SO WHAT TECHNOLOGY EXISTED

IN 1940 AND 1950?

29 CFR § 785.7. and §785.34.

SUFFER OR PERMIT TO WORK IN

THE DIGITAL AGE

Permit to Work

Text messaging

Company e-mail when not in the office

Snapchat; Instagram; Facebook and other

forms of social media

Suffer or permit to work

The FLSA defines the term "employ" to include the

words "suffer or permit to work". Suffer or permit to

work means that if an employer requires or allows

employees to work, the time spent is generally hours

worked. Thus, time spent doing work not requested

by the employer, but still allowed, is generally hours

worked, since the employer knows or has reason to

believe that the employees are continuing to work and

the employer is benefiting from the work being done.

This time is commonly referred to as "working off the

clock."


Place of Work“Hours worked include all the time during which an

employee is required or allowed to perform work for

an employer, regardless of where the work is done,

whether on the employer’s premises, at a designated

work place, at home or at some other location.."


Place of WorkIt is the duty of management to exercise

control and see that work is not performed if

the employer does not want it to be

performed. An employer cannot sit back and

accept the benefits of an employee’s work

without considering the time spent to be hours

worked. Merely making a rule against such

work is not enough.

Suffer to Work or Permit to

Work

DOL

audits

are on

the

increase

and

Suffer to

Work or

Permit to

Work are

hot audit

areas!

Social Media

A million good reasons to not friend your boss or your employee

Company E-mail

Policy against allowing access

If allowed for occasionally, ensure that time is paid for

Text Messaging

Educate managers

Check with non-exempt employees


Work

DOL

audits

are on

the

increase

and

Suffer to

Work or

Permit to

Work are

hot audit

areas!

Lunch hours Take away from assigned work area

>20 minutes of uninterrupted time. If less than 20 minutes, they are considered rest break and are paid time.

Before scheduled start time Just because they arrive at the work place

does not mean that they are working. However, if they are doing set-up/prep work it is likely paid time

After scheduled end time Reworking errors

Emergency project

Working while they are “waiting” for their ride.


Work

Important

Facts to

consider

under

FLSA

Suffer to

Work or

Permit to

Work

Case Law Relevant cases are from the 1940s and

1950s, well before the digital age.

Paid Time Does not have to occur on employer

premises

May include electronic connectivity

Employer Direct Knowledge If manager/supervisor is aware, then

company is liable for wages

Educate managers

Written policy against unauthorized overtime will not protect employer

About Gary Jaburg

As the founder and managing partner of Jaburg Wilk, Gary has more than 30 years

invested in building and operating a business. He utilizes this expertise to help his

clients effectively and efficiently resolve both their business and legal issues, Gary’s

particular talent lies in quickly developing a comprehensive understanding of facts,

personalities and legal issues and subsequently devising a realistic, cost effective

strategy for meeting his client’s goals. His direct, businesslike approach coupled with

win-win negotiating style resonates with both clients and opposing counsel. It is a

proven and successful style to resolve business and legal disputes.

Gary is outside general counsel for his entrepreneurial clients not only learning their

business but also winning their trust and confidence. He is the connector in litigation

and transactional matters, frequently being the go-between with litigation or

transactional counsel and clients. By managing these complex relationships, he

develops successful strategies for dispute resolution, deal negotiation or simply

accomplishing the job.

P: 602.248.1000 Web: www.jaburgwilk.com

E: [email protected]