Q&A

From New Mexico Question: Where in the FLSA does it say that work hours can’t be adjusted to avoid the payment of overtime? Answer: The FLSA’s rules are pretty specific. Under the FLSA, an employer cannot adjust the start of the employee’s FLSA work week or work period for the purposes of avoiding overtime. However, the employer is free to adjust work hours within a work week or work…

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Q&A

From Montana Question: Can the County Attorney’s office legally maintain possession of an internal investigation file of a Deputy in which a district court judge deemed was not Brady material? Answer: Unless there’s something to the contrary in Montana state law or in the County’s ordinances and codes, we see no prohibition that would bar the County Attorney from holding onto the IA file. However, whether the County Attorney…

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Donning And Doffing Case Allowed To Proceed

Police officer “donning and doffing” cases – lawsuits under the Fair Labor Standards Act seeking compensation for putting on and taking off required police equipment and uniforms – have received uneven treatment in the courts. One federal court of appeals – the Ninth Circuit – has ruled that donning and doffing is not compensable work if the employer allows officers to don and doff at home. A trial court…

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Fire Captains Not Exempt Under FLSA

Fairfax County, Virginia treated its fire captains as exempt “executive or administrative employees” under the Fair Labor Standards Act (FLSA), and did not pay them overtime. The captains sued and the case wound up before the federal Fourth Circuit Court of Appeals. The Court held that the captains were not exempt and were legally entitled to overtime. The Court began with a review of the general law under the…

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FLSA Overtime Rate Must Include In-Lieu-Of-Insurance Payments

Many health care plans have a feature that allows employees to opt out of insurance coverage in favor of receiving a cash payment. For some time, questions have arisen as to whether these in-lieu-of-insurance payments must be included in the regular rate of pay for purposes of calculating the FLSA overtime rate. In a recent decision, the federal Ninth Circuit Court of Appeals ruled that the payments must be…

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New FLSA Exemption Rules Are Finally Announced

On May 18, 2016, the Department of Labor finalized regulations governing who is exempt from overtime under the Fair Labor Standards Act (FLSA), modifying the weekly salary and annual compensation threshold levels for white collar exemptions to FLSA overtime requirements. The new regulations are effective December 1, 2016. The FLSA has three major exemptions from overtime: the executive, administrative, and professional exemptions. To qualify for the exemption, an employer…

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The FLSA, Comp Time, And Bargaining

Section 207(o) of the Fair Labor Standards Act sets a series of rules as to when compensatory time off is a legal substitute for cash compensation for overtime. Among the requirements of Section 7(o) is that if the employees have a collective bargaining representative, there must be an agreement between the union and the employer to use compensatory time off. Since Section 7(o) was adopted in 1985, there has…

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Chicago Police Win The BlackBerry Battle, Lose The War

A group of 51 Chicago police officers, sergeants and lieutenants sued the City under the Fair Labor Standards Act (FLSA), claiming they were improperly denied compensation for the off-duty time they spent with their department-issued BlackBerry devices. After years of pre-trial skirmishing, a five-day non-jury trial was held in August 2015. Months later, the federal court judge overseeing the case issued a lengthy opinion. The Court began with a…

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Defective Payroll System Failures No Defense To FLSA Violation

A group of deputy sheriffs for the Lackawanna County, Pennsylvania Sheriff’s Department sued the County alleging that they had worked overtime for which they had not been compensated. In the lawsuit, the County admitted that the deputies had worked the uncompensated hours, but argued that it owed no overtime because it had no contemporaneous knowledge that the work had been performed. A federal court granted the deputies’ request for…

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No FLSA Compensation For Firefighters Picking Up Safety Gear From Home Station

Firefighters working for the Menlo Park, California Fire District are issued two sets of turnout pants and coats, made of fire-resistant fabric with reinforced cuffs and reflective stripes, and two bags to store them, so that one is always available while the other set is being laundered. The District issues only one set of the gear that does not need laundering – helmets and hoods, boots, and so forth….

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Health Care Cashback, Merit Pay Must Be Included In FLSA Overtime Rate

A group of 28 police officers for the City of Sanger, California sued the City under the Fair Labor Standards Act (FLSA). The officers alleged that the City had failed to include in the FLSA overtime rate two forms of compensation: (1) cash-back payments for officers who opted out of the City’s health care plan, and (2) merit pay increases. Under the FLSA, an employer must pay overtime at…

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Q&A

From Maryland Question: Can you poll your members if they use the health care provided to them by the State or by another source (retiree benefit from another jurisdiction, spouse /partner) without violating any laws concerning privacy (HIPAA, ADA, ACA)? Answer: We’re not health insurance experts, but our take on this would be that so long as you were not obtaining any diagnostic information, there would be nothing inappropriate…

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‘Pure Gap Time’ Is Not Compensable Under The FLSA

Section 7(k) of the Fair Labor Standards Act (FLSA) allows employers to take advantage of longer overtime thresholds for public safety employees. Using a “work period” of between seven and 28 days, an employer need not pay law enforcement officers overtime until they work more than the equivalent of a 40-hour week; for firefighters, the threshold is the equivalent of a 53-hour week. Work outside of the regular shift…

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When Is Mandatory Counseling Paid Time Under The FLSA?

Gwendolyn Gibbs and Lanita Drew worked for the New York Police Department. Each was identified by the NYPD as having a problem with alcohol use, although each employee disputed this characterization as false. NYPD required both employees to attend mandatory alcohol treatment and counseling sessions, or else face disciplinary action including, potentially, termination. NYPD’s counseling fell into three categories: Inpatient counseling at a residential alcohol treatment facility, outpatient counseling…

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LAPD Officer Wins FLSA Retaliation Lawsuit

Leonard Avila was a police officer for the City of Los Angeles. In January 2008, Avila testified under subpoena in a Fair Labor Standards Act (FLSA) suit against the City of Los Angeles in the Central District of California brought by a fellow officer who sought overtime for working through his lunch hour. Avila testified that he and many other LAPD officers, including his supervisors, operated under an unwritten…

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What Does It Take To ‘Establish’ A Section 207(k) Exemption?

Section 207(k) of the Fair Labor Standards Act (FLSA) allows an employer to treat law enforcement and fire protection employees less generously than general employees. Under Section 207(k), an employer can “establish” a work period as an alternative to the usual workweek measure of overtime. The overtime thresholds for a work period are also longer than a 40-hour week; for firefighters, they are roughly equivalent to 53-hour weeks, while…

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FLSA Does Not Necessarily Require Pay For Corrections Meal Periods

A group of corrections officers at the Butler County, Pennsylvania prison sued the County under the Fair Labor Standards Act (FLSA). The County required the officers to work eight and one-quarter hour shifts, which include a meal period, but only paid them for eight hours of work. The County required the officers to take a one-hour meal break during their shifts. During their meal periods, the officers were required…

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FLSA Does Not Prohibit Flex Time

A mistake that is more than occasionally made is that the Fair Labor Standards Act (FLSA) is a panacea for a variety of different employment practices to which employees object. The FLSA essentially requires only two things: (1) That employees be paid the minimum wage; and (2) that if employees work over the maximum hours for their workweek or Section 7(k) work period, they must be paid overtime. One…

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A Reminder That State Laws Can Be More Stringent Than The FLSA Or Contracts

A recent case from the Oregon Court of Appeals serves as a good reminder that employers must comply with whatever employment law provides the greatest grant of rights to employees. At times, that grant of rights may be found in the federal Fair Labor Standards Act (FLSA). At other times, that grant of rights may be in a state wage-and-hour statute, or in a collective bargaining agreement. The Oregon…

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LAFD Dispatchers, Aeromedical Technicians Not Firefighters For FLSA Purposes

A group of dispatchers and aeromedical technicians working for the Los Angeles Fire Department sued the City, claiming they were wrongly treated as “fire protection personnel” under the Fair Labor Standards Act (FLSA). The distinction is a huge one. Instead of being subject to the FLSA’s 40-hour-per-week overtime standard, “fire protection personnel” are covered by the FLSA’s Section 7(k) exemption and need not be paid overtime until they work…

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Supreme Court Makes Donning/Doffing Cases Harder To Prove

For over 50 years, the Supreme Court has held that the donning and doffing of equipment and work clothing before and after a work shift is compensable work under the Fair Labor Standards Act (FLSA). Section 203(o) of the FLSA provides an exception to that general rule, and provides that work does not include “any time spent in changing clothes or washing at the beginning or end of each…

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Volunteer Firefighters Can Be Employees For Purposes Of FMLA, FLSA

Paul Mendel was a police dispatcher for the City of Gibraltar, Michigan. When he was fired, he sued the City, claiming violations of the Family and Medical Leave Act (FMLA). At the time Mendel was terminated from his position, the City employed 41 individuals, excluding its “volunteer” firefighters. According to the Fire Chief’s estimate, the City typically had between 25 and 30 volunteer firefighters. The volunteer firefighters were required…

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Wide-Ranging Decision On FLSA Implications Of Premium Pay

A group of paramedics working for the Chicago Fire Department sued the City, claiming that the City violated the Fair Labor Standards Act (FLSA) by failing to include in the overtime rate a variety of premium pays. The dispute led to a wide-ranging decision by a federal district judge on whether different forms of premium pays should be included in the overtime rate. First up were (1) the Fitness…

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Double Damages Under The FLSA

The Fair Labor Standards Act (FLSA) is often referred to as a “double damages statute.” Under the FLSA, an employee bringing a successful suit is usually entitled to recover as “liquidated damages” an amount equivalent to the back wages. A recent case involving Records Clerks for the Manchester, Missouri Police Department illustrates how liquidated damages work under the FLSA. The case began in 2009 when Chief Timothy Walsh decided…

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State Wage-And-Hour Law Can Be More Generous Than FLSA

A group of police officers sued the City of Richmond, Virginia Police Department, alleging violations of both the Fair Labor Standards Act (FLSA) and Virginia’s state wage and hour law. Police officers employed by the City are generally scheduled to work 80 hours within any given 14-day work period. The City’s policy has been to pay officers at their straight-time rate for all hours up to 86 per cycle,…

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