From New Jersey
Question: My department recently requested police officers to contact the court on their days off to find out if they are needed, after being scheduled. I feel we should be compensated for this call. Our contract does not specify; what approach should I take to either get paid for the calls or make this request go away?
Answer: Apart from filing a grievance under your contract, your remedies would likely lie under the Fair Labor Standards Act or any New Jersey wage and hour statute that would apply to your agency. Under the FLSA, the phone calls you describe are clearly “work,” and would have to be compensated unless they were de minimis. The general test for whether time is de minimis and need not be compensated is set forth in an often-cited opinion by the federal Ninth Circuit Court of Appeals. In the case, three factors were set forth as the test for determining if otherwise compensable time is to be considered de minimis.
According to that opinion, courts should consider “(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.” Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984). The Court noted, however, that “[n]o rigid rule can be applied with mathematical certainty.”
Question: Can my City prohibit firefighters in trucks from having a cell phone on them at all while on duty for 24 hours?
Answer: You’re in a state (Florida) with collective bargaining. We’ve seen a couple of decisions that restrictions on the personal activities of firefighters during the “non-business” hours of the fire department are mandatory subjects for bargaining, and cannot be unilaterally changed by the employer without bargaining with the labor organization. While it’s hard to predict how any particular state will rule on the issue, we’d expect this to be the general trend.
Question: A typical shift is 1445 to 2315, paid 8 hours and 30 minutes with no pay for lunch. If you miss your lunch, you get compensated (money or time). Since this is the busiest shift for us, to save on missed lunch compensation, late lunch times were blocked (used to have 30-minute increments between 1700-2100), now times are 1700-1930.
Is there a minimum amount of time worked before an employer can schedule an employee for lunch? Eating at 1700 is just over two hours into a workday.
Answer: The Fair Labor Standards Act has no provisions requiring that employees receive meal periods. All the FLSA demands is that if an employee works through a meal period, the time spent working must be paid.
Some state wage and hour laws, on the other hand, do require that employees be given meal periods. Where these requirements exist, they often contain exceptions for public safety employees. We’d recommend you check with a local lawyer to see the rules in your area.
This article appears in the October 2008 issue