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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When Is A Canine Care Agreement ‘Reasonable’?

Under the FLSA, the time spent by canine officers off duty caring for and training their police dogs is considered compensable work. The Department of Labor’s regulations have special provisions governing compensation for work performed at home. Section 785.23 of the regulations provides: “It is, of course, difficult to determine the exact hours worked under these circumstances and any reasonable agreement of the parties which takes into consideration all…

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State Officials May Be Personally Liable Under The FLSA

Under a Supreme Court decision known as Alden v. State of Maine, the Eleventh Amendment to the Constitution shields state governments from lawsuits filed by employees under the Fair Labor Standards Act (FLSA). A recent Mississippi case tested a slightly different proposition – do the protections of the FLSA apply when employees sue state government officials as opposed to the governmental bodies themselves? The case involved a lawsuit by…

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Corrections Officers Required To Arbitrate FLSA Claim

Corrections officers working for Butler County, Pennsylvania are covered by a collective bargaining agreement between the County and District Council 84 of the American Federation of State, County and Municipal Employees. The grievance procedure of the contract calls for the arbitration of “all disputes relating to the application or interpretation of the CBA and/or any dispute concerning the wages, hours, and working conditions of employees covered by this CBA….

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Canine Dog Care Agreement Precludes FLSA Lawsuit

Frank Krause and William Martin were patrol officers with the Township of Manalapan, New Jersey Police Department. In 1997, Krause, whose childhood dream was to become a canine officer, began discussing with Police Chief John McCormack the possibility of creating a canine unit for the Township. Krause conducted research to support his proposal, contacting other agencies to understand the logistics, costs, and responsibilities associated with operating a canine unit….

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What Is A ‘9/80’ Pay Plan?

by John E. Thompson Non-sworn employees are typically not covered by the Section 207(k) exemption under the Fair Labor Standards Act (FLSA) and must be paid overtime in the form of cash or compensatory time off if they work more than 40 hours in an FLSA “workweek.” Under the 9/80 plan, the employer would set the FLSA “workweek” and schedule for non-exempt employees so that the employees work: Nine…

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Airport Firefighters Are Covered By FLSA’s Section 207(k) Exemption

Section 207(k) of the Fair Labor Standards Act (FLSA) allows a public safety employer to treat firefighters and law enforcement officers differently than other employees for purposes of calculating FLSA overtime. Under Section 207(k), an employer can use a “work period” of between seven and 28 days in length in lieu of a “workweek.” The overtime “thresholds” are higher as well, with the firefighter threshold generally being equivalent to…

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Pittsburgh Faces $825K Liquidated Damages Award In Officers’ FLSA Case

Pittsburgh, Pennsylvania lies in the geographic area covered by the federal Third Circuit Court of Appeals. In 2005, in a case known as Wheeler v. Hampton Twp., 399 F.3d 238 (3d Cir. 2005), the Third Circuit held that the Fair Labor Standards Act (FLSA) required that longevity and shift differential pay be included in the overtime rate. Months later, the City of Pittsburgh signed a Letter of Understanding recognizing…

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Special Detail Work Not Covered by FLSA

The City of Fort Worth owns several facilities, including the Fort Worth Convention Center and the Will Rogers Memorial Coliseum. The City allows its police officers to perform special duty work in uniform. Although the City approves the application of officers who wish to be included on the off-duty assignment list, once an officer’s name is on the list, he or she decides whether to accept or reject a…

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Deputies Not Entitled To Compensation For Commuting Time

The Fresno County, California Sheriff’s Department operates a “Take-Home Patrol Vehicle Program,” pursuant to which deputies are allowed to commute to and from their residences to their duty assignments in a patrol vehicle assigned to them. Participation in the program is voluntary. Participants in the program are not compensated for the time spent commuting to and from their duty assignments or for the time spent cleaning and maintaining their…

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NYPD Sergeants Not Exempt From Overtime

In Mullins v. City of New York, the canary in a coal mine for a lot of other litigation involving the same issue, the federal Second Circuit Court of Appeals squarely faced the question of whether to defer to the Department of Labor on whether mid-level public safety supervisors were exempt from overtime under the Fair Labor Standards Act. The stakes in the case were high – at issue…

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Calculating The Overtime Rate Under The FLSA

Public safety employers continue to be bedeviled by some of the requirements of the Fair Labor Standards Act (FLSA). High up there on the list of problems is how to calculate the overtime rate under the FLSA. Here’s a primer on the basics. The starting point – and a critical one – is to realize that the FLSA overtime rate is not necessarily time and one-half the employee’s hourly…

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Massachusetts Sheriff’s Office Has Immunity Under FLSA

In Alden v. Maine, 527 U.S. 706 (1999), the Supreme Court held that state governments have immunity from lawsuits filed by employees under the Fair Labor Standards Act. The Court based its decision on the Eleventh Amendment to the U.S. Constitution, which gives states immunity from private lawsuits unless they have waived their “sovereign immunity” from being sued. When a group of corrections officers employed by the Essex County,…

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City, Not Police Department, Is The Right Entity To Sue Under The FLSA

Sean Beck was a police officer for the City of Zanesville, Ohio. In March 2005, he inquired about the possibility of establishing a canine unit in the Police Department. The Department authorized Beck to start a canine program. Beck raised the money to purchase the dog and trained the dog himself. He spent 1,017 overtime hours training and caring for the dog. Beck spent his own funds caring for…

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No Rule Against Working For Free In LAPD

Teresa Anderson is a sergeant with the Los Angeles Police Department. LAPD terminated Anderson, citing the fact that she “neglected to request compensation after working overtime,” that she “neglected to report misconduct after witnessing unidentified sworn officers discourage subordinates from submitting requests for overtime compensation,” and that she lied in a deposition when she stated that LAPD employees were aware that she violated Department policies regarding the FLSA. Anderson…

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The Fair Labor Standards Act And Compensatory Time Off Use

It would seem like a simple question. If a public employee wants to use compensatory time off on a particular day, does the employer have to grant the day off? As straightforward as that question might seem, courts have tangled with the issue, and the Department of Labor (DOL) has recently withdrawn a proposed regulation that would have changed its long-held view on the issue. Here’s the lay of…

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Each New Paycheck Starts New Statute Of Limitations Under FLSA

Officers of the District of Columbia Metropolitan Police Department sued the District under the Fair Labor Standards Act (FLSA), alleging that the District had failed to calculate their overtime based on enhanced pay owed to detective sergeants under the District of Columbia Code. The procedurally complicated case started with a grievance filed by three officers, who alleged that they had fulfilled the duties of detective sergeant but had not…

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Q & A

From California Question: Do you have any information on department policies regarding tattoos, brandings and piercings being visible while an officer is on duty? Answer: We know of no cases on the issue. We are aware that many departments have required that officers cover tattoos while on duty. We do think it clear that such orders are enforceable. The real debate is whether a department’s orders can extend into…

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