Fair Labor Standards Act Pittsburgh Pennsylvania 2015 Authorship

Fair Labor Standards Act Pittsburgh, Pennsylvania 2015

Authorship Credits n Will Aitchison, Esq. Aitchison and Vick 3021 NE Broadway Portland, Oregon 97232 n Christina L. Corl, Esq. NFOP Associate General Counsel Crabbe, Brown, & James, LLP 500 South Front Street, Suite 1200 Columbus, Ohio 43215

FLSA Overview n A Brief History n Donning and Doffing n Compensatory Time n What is Compensable? n Calculating The Regular Rate of Pay n Exemptions

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

FLSA History n Depression Era legislation passed as part of economic recovery efforts n Passed in 1938 as part of the New Deal n Initially limited to private sector – Established minimum wage – Established overtime pay – Prohibited child labor n Extended 1974 to government employees in

DONNING AND DOFFING

Donning and Doffing Under the FLSA, compensable time “includes all pre-shift and post-shift activities which are an integral part of the employee’s principal activity or which are closely related to the performance of the principal activity…” n IBP, Inc. v. Alvarez, 546 U. S. 21 (2005) n – – D & D necessary protective gear Waiting to Doff Walking to and from D & D area Waiting to Don YES YES NO

Donning and Doffing (continued) n Continuous workday analysis – Donning necessary protective gear is essential to the principal activity – Waiting to don the protective gear is one step removed and may not always be necessary

Donning and Doffing (continued) n Martin v. City of Richmond, 2007 WL 2317590 (N. D. Cal. 2007) – Vests, guns, pepper spray, etc. are indispensible to the performance of a police officer’s job BUT – Uniforms are not: § “a police officer’s uniform, in and of itself, does not assist the officer in performing his duties. ”

Donning and Doffing (continued) n Abbe v. City of San Diego, 2007 WL 4146696 (S. D. Cal. 2007) – Disagreed with the Martin case insofar as the issue is not whether the uniform is indispensible, it is indispensible – Relevant inquiry is whether the donning and doffing at work is indispensible – Since officers had the option to don and doff at home, donning and doffing was not compensable

Donning and Doffing (continued) n Lemmon v. City of San Leandro, 2007 WL 4326743 (N. D. Cal. 2007) – Uniforms are indispensible – Uniforms are a part of the continuum of force – Uniforms afford power and deference – Mandatory D & D at work is compensable – BUT, there is no specific requirement in the FLSA that preliminary or postliminary activity take place on employers premises

Donning and Doffing (continued) n Dager v. City of Phoenix, Slip Copy, 2009 WL 531864 (D. Ariz. , 2009) – although tasks may be integral and indispensable to a principal activity, “employees cannot recover for otherwise compensable time if it is de minimis. ” – “When the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded because split-second absurdities are not justified by the actualities of working conditions or by the policy of the Fair Labor Standards Act. ”

Donning and Doffing (continued) n The Ninth Circuit has held that: – An important factor in determining whether a claim is de minimis is the amount of daily time spent on the additional work. – There is no precise amount of time that may be denied compensation as de minimis and no rigid rule can be applied with mathematical certainty. . . rather, common sense must be applied to the facts of each case.

Donning and Doffing (continued) The law of the Ninth Circuit precludes compensation for donning and doffing where an employee has the “option and ability” to don and doff at home. n Because Phoenix patrol officers have the “option and ability” to don and doff uniforms and protective gear at home, these activities are preliminary and postliminary to the principal activity of police work and therefore are noncompensable under the FLSA. n

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

Donning and Doffing (continued) n Maciel v. City of Los Angeles, 569 F. Supp. 2 d 1038 (C. D. Cal. , 2008). – First, it is beyond dispute that the donning and doffing of the protective gear is, at both broad and basic levels, done for the benefit of LAPD. These Plaintiff-performed activities allow the LAPD to ensure that officers are kept safe, and allow the officers to complete their principal duty of enforcing the laws of the land. As an example, without the contents of the Sam Browne belt, an officer would not have handcuffs with which to subdue suspects.

Donning and Doffing (continued) Second, most officers are required to wear their personal safety equipment while on duty. Failure to do so can result in discipline. For all practical purposes, the equipment must be donned and doffed at the assigned station. Officers are discouraged from wearing their uniform while off duty. Moreover, in order to put on the Kevlar vest, the officer must first remove the uniform shirt, or more logically, wait to put the shirt on until they are at the station. n Finally, a loaded firearm, as well as pepper spray, are both held within the Sam Browne belt, it could pose a safety risk to require officers to take this weapon home should the officer wish to leave the equipment at the station. n

Donning and Doffing (continued) n In determining whether the time to don and doff is de minimis, it is not merely the time involved that is considered, but also the size of the aggregate claim and the regularity with which the activity takes place. 1. the practical administrative difficulty of recording the additional time; 2. the aggregate amount of compensable time; and 3. the regularity of the additional work.

Donning and Doffing (continued) n Assuming for the purpose of this analysis that it takes Plaintiff five minutes per shift for the donning and doffing activity, at Plaintiff's current salary, the uncompensated time would be $3. 33 per shift, double if assuming ten minutes per shift. Compounding this time for every shift for the two years of uncompensated time, the aggregate claim would exceed $1000. This amount could not be considered minuscule in light of Plaintiff's salary.

Donning and Doffing (continued) n Bamonte v. City Of Mesa, Slip Copy, 2008 WL 1746168 (D. Ariz. , 2008). – Because the Plaintiffs have failed to establish the presence of a genuine issue of material fact concerning the nature of their duties, the court concludes that they have both the option and the ability to don and doff their uniforms and protective gear at home. Consequently, such donning and doffing are preliminary and postliminary activities respectively, the performance of which does not require compensation.

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

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

COMPENSATORY TIME

Compensatory Time n The courts are split on the employer’s authority to deny comp time-off requests n Houston Police Officers’ Union, et al. v. City of Houston, 330 F. 3 d 298 (5 th Cir. 2003) – Employer comp time-off cap of 10% of total number of officers in unit permitted

Compensatory Time (continued) n Mortensen v. County of Sacramento, 368 F. 3 d 1082 (9 th Cir. 2004) – Employers cannot be forced to pay other officers overtime in order to accommodate requests to use comp time-off

Compensatory Time (continued) n Beck v. City of Cleveland, 390 F. 3 d 912 (6 th Cir. 2004) – Unlimited discretion to deny comp time-off relieves employers of establishing undue disruption under the FLSA – Employers should be required to establish factual showing of undue disruption

Compensatory Time (continued) n Christensen v. Harris County, 529 U. S. 576 (2000) – Nothing in the FLSA forbids an employer from compelling an employee to use accrued comp time

Compensatory Time (continued) Employers cannot force employees to take comp time in lieu of cash n Employees cannot demand comp time in lieu of cash n UNLESS an agreement between the employer and employees permits such and the employee has not exceeded the FLSA maximum limit n FLSA maximum limit for LEOs is 480 hours n

Compensatory Time (continued) n Scott v. City of New York, Slip Copy, 2008 WL 4949343 (S. D. N. Y. , 2008). – NYPD’s policy of denying overtime opportunities based upon the officers’ election to receive cash as opposed to compensatory time ruled not illegal. Such decisions are discretionary, not discriminatory.

Compensatory Time (continued) n Heitmann v. Chicago, 2009 WL 764155 (Ill. C. A. 7, 2009) – Chicago P. D. ’s practice of denying use of comp time without reason or establishing undue disruption violated FLSA.

Cashing Out n§ 553. 27 Payments for unused compensatory time. n (a) Payments for accrued compensatory time earned after April 14, 1986, may be made at any time and shall be paid at the regular rate earned by the employee at the time the employee receives such payment.

Cashing Out n (b) Upon termination of employment, an employee shall be paid for unused compensatory time earned after April 14, 1986, at a rate of compensation not less than— n (1) The average regular rate received by such employee during the last 3 years of the employee's employment, or n (2) The final regular rate received by such employee, whichever is higher.

WHAT IS COMPENSABLE?

Compensable Time? n Canine Officers – Training time YES – Feeding/grooming/veterinarian visits YES – Exercise time YES – Commuting time § Most courts say NO unless dog is kenneled away from work and officer’s home § Some courts say YES due to benefit of having additional time in marked unit “on patrol. ”

Compensable Time? (continued) n Off duty details/moonlighting – Even if employer: § Maintains roster & eligibility lists; § Selects personnel for jobs; § Negotiates pay; § Collects administrative fees; § Receives officers’ pay directly; § Enforces on-duty code of conduct; and, § Enacts ordinances restricting details. NO

Compensable Time? (continued) Court appearances n Physical fitness training n Maintaining uniforms/equipment n Paid leave n Commuting in take home vehicle n On-call time MAYBE n Mealtime MAYBE n Disciplinary hearings MAYBE n YES NO NO*

Take Home Vehicle General travel to and from work is not compensable. A police officer who is given a patrol car to drive home and use on personal business is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls. n Two exceptions: n – a custom or practice to compensate for drive time – the activities are an integral and indispensable part of the employment (e. g. responding to calls).

Take Home Vehicle (Continued) n Adams 2006). v. U. S. , 471 F. 3 d 1321 (C. A. Fed. , – “[C]ommuting done for the employer's benefit, under the employer's rules, is noncompensable if the labor beyond the mere act of driving the vehicle is de minimis. ”

On Call Time n Cannon v. Vineland Housing Authority, Slip Copy, 2008 WL 4372798 (D. N. J. , 2008). – on-call time may be compensable under the Fair Labor Standards Act under two circumstances: “if the employee is required to remain on premises, or if the employee, although not required to remain on the employer's premises, finds his time on-call away from the employer's premises is so restricted that it interferes with personal pursuits. ” Ingram v. County of Bucks, 144 F. 3 d 265, (3 d Cir. 1998).

On Call Time (Continued) n on-call time may be compensable under the following factors: – whether the employee may carry a beeper or leave home; – the frequency of calls and the nature of the employer's demands; – the employee's ability to maintain a flexible on-call schedule and switch on-call shifts; and, – whether the employee actually engaged in personal activities during on-call time.

Mealtime n Wood v. City of Elgin, Slip Copy, 2008 WL 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 Hearings n Wetzel v. Town of Orangetown, Slip Copy, 2009 WL 690114 (S. D. N. Y. 2009). – Under the FLSA, an employee is entitled to compensation for time spent at disciplinary hearing, but not time spent preparing for the hearing.

CALCULATING THE REGULAR RATE OF PAY

What is “work”? n Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590 (1944). – “an activity constitutes ‘work, ’ and is compensable under the FLSA, if it involves ‘physical or mental exertion (whether burdensome or not), ’ or the loss of an employee's time, that is ‘controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business. ’”

What is “work”? n Plaintiffs must prove that they were permitted to or suffered work without compensation. Courts have interpreted this to mean that plaintiffs must prove: 1. the employees worked overtime without compensation; and, 2. the employer knew or should have known of the overtime work.

What is “Work”? n Reich v. Dept of Conservation and Nat. Res. , 28 F. 3 d 1976, 1082 (11 th Cir. 1994). – employees were not permitted to work more than 40 hours/week by Department rule – supervisors allowed employees to work more than 40 hours to “get the work done” – employees were not allowed to report the extra time and were not paid – Court ruled in favor of employees

Calculating O. T. n It is the employer’s obligation to inquire about the work and cannot stand idle while allowing employees to work overtime without the required compensation. n Even if employees volunteer to work more than 40 hours, they must be paid overtime, not straight time.

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

Calculating O. T. n Scott v. City of New York, 2009 WL 507035 (S. D. N. Y. , 2009). – Non-overtime hours that are consistent and anticipated must be included in the regular rate calculation, regardless of whether they are included on a duty chart. However, the regular rate of pay must be determined based on an officer's non-overtime work period.

The Formula Compensation ÷ Straight Time Hours = Regular Rate of Pay $1000 ÷ 40 Hrs = $25/hr

What Constitutes Compensation? Shift Differentials Specialty Assignment Pay Longevity Pay Hazardous Duty Pay Educational Pay Working out of capacity/classification Shift trading - Each officer credited for their own hours n Retroactive pay raises n Disciplinary and other deductions may not be used to reduce the rate of pay n n n n

What is Excluded From Compensation? n Overtime Pay n Holiday Pay n Sick Pay n Expense Reimbursements (e. g. , Travel, Clothing, etc. ) n Employer Contributions to Pension n Insurance Premiums

“Gap Time” n Koelker v. Mayor and City Council of Cumberland (Maryland), 599 F. Supp. 2 d 624 (D. Md. , 2009). – Violations of negotiated overtime thresholds are not actionable under the FLSA unless the FLSA thresholds have been violated.

“Gap Time” (continued) n EXAMPLE: – If an employer agrees to pay overtime for all hours worked in excess of 35 hours, there is no claim under the FLSA for failing to pay overtime premium for the hours worked between 35 and 40 hours. – The overtime premium paid between 35 and 40 hours cannot be used to calculate the regulate rate of pay under the FLSA.

EXEMPTIONS

Who Is Exempt? n Salaried n Highly employees compensated employees n Executive employees n Administrative employees

Salaried Employees n Deductions absences of less than full days for – Sick days – Personal leave – Misconduct suspensions n Deductions for jury service n A continued practice of such deductions

Highly Compensated Employees Total annual salary of more than $100 k – Min. $455/wk excluding fringe benefits – Without overtime n “Primary” duties include ONE of the following: – Management of the agency; – Customarily and regularly direct the work of two or more employees; or – Hiring and firing of employees and significant influence on other personnel decisions. n

Executive Employees Total annual salary of more than $100 k – Min. $455/wk excluding fringe benefits – Without overtime n “Primary” duties include ALL of the following: – Management of the agency; – Customarily and regularly direct the work of two or more employees; or – Hiring and firing of employees and significant influence on other personnel decisions. n

Administrative Employees Total annual salary of more than $100 k – Min. $455/wk excluding fringe benefits – Without overtime n “Primary” duties include BOTH of the following: n – The performance of office or non-manual work directly related to the management or general business operations; and, – The exercise of discretion and independent judgment with respect to “matters of significance” (tax, finance, insurance, quality control, purchasing, HR, PR…. )

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

Who is Exempt? n Crawford v. Lexington-Fayette Urban County Government, WL 2598345 (E. D. Ky. , 2008). – This court must determine what constitutes the “principal, main, major or most important duty that the employee performs. ”

Who is Exempt? n Rooney v. Town of Groton, 577 F. Supp. 2 d 513 (D. Mass. , 2008). – Police lieutenant deemed exempt from FLSA due to: § Salary, supervisory capacity, discretion in answering calls, discretion in disposing of cases, recommendations for promotions, hiring and firing, lack of actual police work. § First responder exception applies the same analysis. Primary duty as supervisor will prevail.

Who is Exempt? n Mullins v. City of New York, Slip Copy, 2008 WL 4620709 (S. D. N. Y. , 2008). – The “bona fide executive” exception to FLSA applies only to employees who have “the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight. ” This is known as the hire/fire test.

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

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