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F.L.S.A. - Overtime - In General
Monthly
Law Journal Article: On-Call
Duty, 2008 (11) AELE Mo. L. J. 201.
Monthly Law Journal Article: Overtime
Pay for Preduty Preparations, 2009 (1) AELE Mo. L. J. 201.
Monthly Law Journal
Article: Overtime
Pay Entitlement for Public Safety Employees Under the Fair Labor Standards Act
(FLSA), Part 1, 2016 (9) AELE Mo. L. J. 201.
Monthly Law Journal Article: Overtime Pay Entitlement for
Public Safety Employees Under the Fair Labor Standards Act (FLSA), Part 2,
2016 (10) AELE Mo. L. J. 201.
Monthly Law Journal Article: Overtime Pay Entitlement for
Public Safety Employees Under the Fair Labor Standards Act (FLSA), Part 3,
2016 (11) AELE Mo. L. J. 201.
After ICE altered how it calculated overtime pay owed to certain employees, a union representing employees filed a grievance complaining that the policy was changed without first bargaining over the issue. A federal appeals court agreed with the Federal Labor Relations Authority (FLRA) that ICE had no duty to bargain before changing its overtime policy because ICE’s previous policy was unlawful. The previous policy of excluding leave time was unlawful under a simple reading of the 1997 Guidance and the 2002 amendments to the regulations. American Federation of Government Employees National Council v. FLRA, #18-1195, 2019 U.S. App. Lexis 17356, 2019 WL 2426215 (D.C. Cir.).
A federal appeals court upheld the decertification of two related class actions brought under the Fair Labor Standards Act (FLSA) by LAPD officers, alleging a pervasive, unwritten policy discouraging the reporting of overtime. The court held that the officers can appeal a decertification order when they were dismissed from the collective action before final judgment and without prejudice to their individual FLSA claims. The court ruled that opt-in plaintiffs are parties to the collective action, and an order of decertification and dismissal disposes of their statutory right to proceed collectively. Therefore, they had standing to appeal and may do so after the interlocutory decertification order to which they are adverse merges with final judgment. The court also held that the collective actions in this case were properly decertified and the officers properly dismissed for failure to satisfy the “similarly situated” requirement of the FLSA. The court’s review of the record demonstrated that the officers failed, as a matter of law, to create a triable question of fact regarding the existence of a department-wide policy or practice. Campbell v. City of Los Angeles, #15-56990, 2018 U.S. App. Lexis 25951, 2018 WL 4354379 (9th Cir.).
The plaintiffs were a class of employees each of whom worked in two separate part-time capacities for the county. The county tracked and paid them for each of their individual jobs but in 2011 became aware that it had failed to aggregate the hours from both jobs, thus failing to pay overtime for hours beyond 40 each pay period. The county conceded owing overtime for such hours, but the plaintiffs claimed a “willful” violation which, if proven, would expand the limitations period for claims, allowing the plaintiffs to receive larger awards. A federal appeals court upheld a determination that there was inadequate evidence of a willful violation. There was no evidence that the county was subjectively aware of the overtime problem at the time of the violations. SourYavong v. County of Lackawanna, #15-3895, 2017 U.S. App. Lexis 18173, 27 Wage & Hour Cas. 2d (BNA) 793 (3rd Cir).
The Kansas Bureau of Investigation’s (KBI) official overtime policy provides
one-and-a-half times the normal hourly rate for hours worked in excess of
eighty hours in a two-week period. A former KBI agent claimed that the employer
applied pressure on employees to work overtime hours without claiming overtime
in violation of state and federal laws. He also argued that he was unlawfully
fired in retaliation for complaining about this. The Kansas Supreme Court found
the complaint about unpaid overtime sufficient to preclude summary judgment on
whether the plaintiff engaged in protected activity. The court stated that
state law recognizes retaliatory discharge as a cause of action when an
employee is fired for asserting rights under the Fair Labor Standards Act or
the Kansas Minimum Wage and Maximum Hours Law. Further proceedings were ordered
on the employee’s claim. Lumry v. State, #108425,
2016 Kan. Lexis 604
Joining the D.C., Second,
Third, Seventh, and Ninth Circuits, the U.S. Court of Appeals for the Eleventh
Circuit has ruled that employees may pursue a collective wage and overtime
action against their employer under Sec. 216(b) of the Fair Labor Standards Act
(FLSA), 29 U.S.C. 201 et seq., at the same time as a class action brought based
on more protective state minimum wage and overtime laws and pursuant to Federal
Rule of Civil Procedure 23(b)(3) in the same proceeding. In a case brought
against a county sheriff, the appeals court overturned a trial court decision
that held that those two types of lawsuits were "mutually exclusive and
irreconcilable." Calderone v. Scott, #15-14187, 2016 U.S. App. Lexis
17606, 26 Fla. L. Weekly Fed. C 806, 167 Lab. Cas. (CCH) P36474 (11th Cir.).
An employee of a county surveyor's office was
given permission by his supervisor to take a class during work hours, but was
told that he would have to treat the time as unpaid or vacation time. He agreed
to that, but when the class began, worked through lunch and came in early for a
week. He was paid for that time, but fired for failing to follow his
supervisor's order. He sued for violations of the Fair Labor Standards Act and
an Indiana state wage claim statute. He claimed that while he would put his
actual time worked on his time card, the hours were then reduced, with him
being told that he could not be paid for over 37.5 hours in any one workweek.
The county responded that he had been paid for all time he certified and that
his recollection of his time worked was "demonstrably unreliable."
Affirming summary judgment for the county, the appeals court noted that the
plaintiff failed to refute the county contention that his evidence was
implausible He failed to show that he worked over 40 hours in a workweek.
Melton v. Tippecanoe Cnty., #14-3599, 2016 U.S. App. Lexis 17352, 167 Lab. Cas.
(CCH) P36473, 26 Wage & Hour Cas. 2d (BNA) 1673 (7th Cir.).
Employees at a private
manufacturing plant were required to be onsite before and after their work shifts
to "don and doff" uniforms as well as protective gear. They were also
required to help with "shift relief," in which employees from an
outgoing shift shared information about the status of the work with incoming
shift workers. The time that donning, doffing, and shift relief took varied
from 30 to 60 minutes a day. The company paid employees for 30 minute meal
breaks and two other 30 minute breaks during their 12-hour shifts, even though
not legally required to do so. The paid break time was always in excess of the
time spent on donning and doffing and shift relief. A class action lawsuit
sought overtime under both the Fair Labor Standards Act and a Pennsylvania
state statute for the time spent donning and doffing and providing shift
relief. While the trial court granted summary judgment to the employer, a
federal appeals court reversed, finding that the court's prior precedent
limited offsetting to "extra compensation" not included in the
regular rate, which was therefore inapplicable to the paid break time regularly
paid. Smiley v. EI DuPont de Nemours & Co., #14-4583, 2016 U.S. App. Lexis
18242 (3rd Cir.).
Active and former park rangers employed by a city
Parks Department sued, claiming that they were entitled to pay under the Fair
Labor Standards Act for time spent donning and doffing uniforms and equipment
such as bulletproof vests and utility belts that they were required to wear
which contained handcuffs, mace, and other materials. Overturning partial
summary judgment for the employer, the federal appeals court found that, on the
current record, it could not conclude that the plaintiffs' donning and doffing
of uniforms were not integral and indispensable to their principal job
activities. Further proceedings were required to determine first whether the
time was nevertheless non-compensable under either the de minimis doctrine or
under the terms of a collective bargaining agreement. Perez v. The City of New
York, #15-315, 2016 U.S. App. Lexis 14104 (2nd Cir.).
Current and former police officers claimed that
the city violated the Fair Labor Standards Act (FLSA), 29 U.S.C. 201-19 by
failing to include payments of unused portions of their benefit allowances when
calculating their regular rate of pay, resulting in lower overtime pay. The
federal appeals court agreed with this claim as the money paid for unused
benefits was payment for work. The plaintiffs were entitled to liquidated
damages because the city failed to show that it attempted in good faith to
comply with the law. Flores v. City of San Gabriel, #14-56421, 2016 U.S. App.
Lexis 10018 (8th Cir.).
Employees of a private food processing plant who
worked in certain department were required to wear protective gear. The
employer compensated some, but not all, employees for donning and doffing the
gear, and did not record the time each employee spent on these activities.
Employees who were not compensated sued under both federal and state wage laws.
A jury awarded approximately $2.9 million in overtime, based on a study by an
industrial relations expert who videotaped observations of how long various
donning and doffing activities took, and estimated an average of 8 minutes a
day for two departments and 21.5 minutes for a third. The U.S. Supreme Court
upheld the result and the methodology, holding that because a representative
sample could be the only feasible way to establish liability, it could not be
regarded as improper solely because the claim was brought as a class action.
Had each class member brought an individual action, they could have relied on
the study to establish liability. Tyson Foods, Inc. v. Bouaphakeo, #14-1146,
194 L. Ed. 2d 124, 2016 U.S. Lexis 2134.
Current and former Vermont State employees sued
the state in state court for alleged violations of the Fair Labor Standards Act
(FLSA). The state removed the lawsuit to federal court, and the trial court
subsequently granted the defendants' motion to dismiss. While the state's
removal of the case to federal court may have had the effect of waiving
Eleventh Amendment immunity from suit in federal court, the defendants had not
expressly waived the state's general sovereign immunity from a private FLSA
lawsuit. The dismissal was therefore proper. The fact that the state had
recognized, in a state statute, its legal obligation to comply with the FLSA
did not constitute an intentional waiver of immunity from a lawsuit against it
under the FLSA's private right of action provisions. Beaulieu v. State of
Vermont, #13-4198, 2015 U.S. App. Lexis 16505 (2nd Cir.).
Firefighters and emergency medical personnel were
not entitled to overtime under the FLSA for time spent loading and unloading
gear from their cars and taking their gear to temporary duty stations other
than their homes. The time spent on this activity was not "integral and
indispensable" to the principal work they were employed to perform, and
rather was "preliminary" or "postpreliminary" under the
Portal-to-Portal amendments to the FLSA. The court further ruled that the
defendant agency did not act in violation of the FLSA when it excluded money
paid to the plaintiffs from their "regular rate" of pay which was
then used to calculate the proper rate of overtime. Balestrieri v. Menlo Park
Fire Protection Dist., #12-15975, 2015 U.S. App. Lexis 15785 (9th Cir.).
Department of Veterans Affairs nurses claimed
that they were improperly denied overtime pay for certain hours worked. Under
the applicable statute, the agency was required to compensate for
"officially ordered and approved" overtime work. The U.S. Claims
Court rejected the nurses' claim, since they failed to allege that the agency
had "expressly directed" them to work the overtime hours. A federal
appeals court reversed finding that the statute did not require the official
order or approval to be in a particular form, and the agency had not adopted
any regulation mandating a particular procedure for approving overtime. The
nurses did allege that the agency had "knowledge" that they work
overtime on a recurring and involuntary basis, and that the employer approved or
ordered such work through "expectation, requirement, and inducement."
Further proceedings on the claim were therefore ordered. Mercier v. United
States, #14-5074, 2015 U.S. App. Lexis 8003 (Fed. Cir.).
A federal appeals court upheld a jury verdict for
a city in an overtime lawsuit under the Fair Labor Standards Act (FLSA), 29 U.S.C. 207(a) brought
by fifty-four fire suppression lieutenants. The city raised an affirmative
defense under the executive exemption to the overtime provisions, and judgment as
a matter of law for the plaintiffs was properly denied because a reasonable
jury could find, based on the evidence, that each category of disciplinary
suspensions and deductions was permissible as falling under either a workplace
conduct rule or a safety rule of major significance. The plaintiffs' proposed
instructions on wait time, which the trial court declined to give, was not an
accurate statement of the law. Watkins v. Montgomery, Alabama, #13-11718, 2014
U.S. App. Lexis 24416 (11th Cir.).
Michigan correctional officers had to perform
several activities before and after their shifts, including punching a time
clock, waiting in line for security, and walking to their assigned locations,
but they were not paid for the time expended in doing these things. The
officers and their union sued under the Fair Labor Standards Act (FLSA) and
state law, seeking compensation. A federal appeals court upheld the dismissal
of the lawsuit on sovereign immunity grounds. Absent a past of imminent future
violation of the Fourteenth Amendment, Congress had no remedial power under
Sec. 5 of the Fourteenth Amendment to abrogate the state's immunity from suit,
so the federal courts lacked jurisdiction to address these claims against the
Department of Corrections, a state agency. Once the federal claims were
dismissed, the state law claims were dismissed without prejudice, and might be
pursued in state court. Mich. Corrs. Org. v. Mich. Dep't of Corr., #14-1028,
2014 U.S. App. Lexis 23761, 2014 Fed App. 294P (6th Cir.)
A police union failed to show that a township violated the
Fair Labor Standards Act by failing to pay proper overtime, pay compensation
for muster time, and provide compensation for time spent putting on and taking
off uniforms. The township qualified for the Sec. 207(k) exemption from
overtime by adopting a valid work period requiring that officers work either a
seven day or a nine day period on a regularly recurring basis. The court found
that officers were compensated for muster time as a component of their
negotiated salaries, and that there was a custom or practice under the
collective bargaining agreement of not compensating officers fo time spent
donning and doffing clothes. The officers had the burden of showing that they
performed work for which they were not properly compensated, and failed to do
so. Rosano v. Township of Teaneck, #13-1263, 754 F.3d 177, (3rd Cir. 2014).
A former police officer claimed that he was not
fired, as the department claimed, for working through lunch without requesting
overtime, but rather in retaliation for testifying in a lawsuit brought by a
fellow officer concerning a FLSA claim. His retaliation claim was not precluded
by the police department's board of rights' recommendation that he be fired for
insubordination fo not claiming overtime. The evidence in the case did not
support the city's claim that the firing was based on the content of his
testimony rather than the mere fact that he testified. The officer was awarded
$50,000 in liquidated damages and $579,000 in attorneys' fees, and the appeals
court affirmed this award. Avila v. LAPD, #12-55931, 2014 U.S. App. Lexis
13052, 22 Wage & Hour Cas. 2d (BNA) 1612 (9th Cir.).
The U.S. Department of Labor claimed that the
Washington State Department of Social and Health Services engaged in both
overtime and recordkeeping violations under the Fair Labor Standards Act
(FLSA). The plaintiff provided proof of the claimed violations supported by 400
employee signatures, but 350 of the signatures were obtained after the lawsuit
was filed. The trial court ordered the plaintiff to answer three
interrogatories that would disclose those 350 employees' names, ruling that
they did not qualify as "informants" whose identities were protected
from discovery by the government's informants privilege, because of when their
signatures were obtained. The appeals court found that the trial judge had
erroneously limited the scope of the informants' privilege and that the
defendant agency did not have a compelling need for the identities or identifying
information of the 250 employees who would not be witnesses at trial, and who
said that they wished to remain anonymous. Perez v. U.S. District Court,
#13-72195, 2014 U.S. App. Lexis 7301 (9th Cir.).
Employees who work at steel plants sued their
employer under the Fair Labor Standards Act, seeking overtime pay for
additional time they spent putting on and taking off protective gear required
by their employer because of workplace hazards. While such time is otherwise
compensable, the employer argued that it was able to regard it as
non-compensable under the terms of a collective bargaining agreement with the
employee's union. 29 U.S.C. Sec. 203(o) allows for collective bargaining as to
whether time spent "changing clothes" or washing at the beginning or
end of the workday was paid work time. The U.S. Supreme Court unanimously
agreed, ruling that the protective gear involved amounted to
"clothes," even if it was indispensable for performing the work. The
time spent putting on earplugs and safety glasses was minimal, so that even if
they were not "clothes," the time period involved could fairly be
labeled time spent changing clothes or washing. The employees were not entitled
to overtime for the time. Sandifer v. United States Steel Corp., #12-417, 2014
U.S. Lexis 799.
Employees who work at steel plants sued their
employer under the Fair Labor Standards Act, seeking overtime pay for
additional time they spent putting on and taking off protective gear required
by their employer because of workplace hazards. While such time is otherwise
compensable, the employer argued that it was able to regard it as
non-compensable under the terms of a collective bargaining agreement with the
employee's union. 29 U.S.C. Sec. 203(o) allows for collective bargaining as to
whether time spent "changing clothes" or washing at the beginning or
end of the workday was paid work time. The U.S. Supreme Court unanimously
agreed, ruling that the protective gear involved amounted to
"clothes," even if it was indispensable for performing the work. The
time spent putting on earplugs and safety glasses was minimal, so that even if
they were not "clothes," the time period involved could fairly be
labeled time spent changing clothes or washing. The employees were not entitled
to overtime for the time. Sandifer v. United States Steel Corp., #12-417, 2014
U.S. Lexis 799.
Sixteen firefighters sued a city for overtime
under the Fair Labor Standards Act (FLSA) for work done at the request of the
state of South Dakota to fight wildfires in western South Dakota and Nebraska.
A federal appeals court held that the trial court inappropriately granted the
city summary judgment on its argument that the "special detail"
exemption to the FLSA, 29 U.S.C. Sec. 207(p)(1) applied. The city argued that
the firefighters volunteered for the state firefighting assignment, and that,
because the state and city are separate and independent employers, the hours
that the firefighters worked for each are not combined for purposes of overtime
pay. The appeals court, however, found that there was a factual issue as to
whether the firefighters were actually working for the city during their
wildfire deployment. Specht v. City of Sioux Falls, #10-1733, 2011 U.S. App.
Lexis 9553 (8th Cir.).
Regarding the timeliness of FLSA claims, a
new cause of action accrues each time a police department issues a deficient
paycheck. Figueroa v. D.C. Metro. Police Dept., #09-7133, 2011 U.S. App. Lexis
3168 (D.C. Cir.).
Although management required a police officer to
attend AA meetings and obtain counseling as a condition of retaining his job,
the time spent in these activities was not compensable work for FLSA purposes.
Todd v. Lexington Fayette Urban County Government, #5:08-295, 2009 WL 4800052,
2009 U.S. Dist. Lexis 115183 (E.D. Ky. 2009).
Eleventh Amendment bars overtime lawsuits brought
against state agencies. Keeler v. Fla. Dept. of Health, #10-10987, 2010 U.S.
App. Lexis 19912 (Unpub. 11th Cir.).
Treatment for alcoholism, while off-duty, was
non-compensable. "The Court cannot find that while in treatment, [the
plaintiff] learned any skills that enabled him to become a more effective or
valuable police officer." Attendance at AA meetings and psychiatric
evaluations, although mandated by his employer, "does not constitute
compensable 'work' under the FLSA." Todd v. Lexington Fayette Urban County
Government, 2009 U.S. Dist. Lexis 115183 (E.D. Ky.).
There is a three-part inquiry related to
compensation for "donning and doffing." The first is whether the activity
constitutes "work"; the second is whether the activity is an
"integral and indispensable" duty; and third, whether the activity is
de minimis. Because Mesa police officers have the option and ability to don and
doff their uniforms and gear at home, the specific activity of donning and
doffing uniforms and gear at the workplace is not compensable. One judge of the
panel of three concurred in the judgment only and dissented in part. Bamonte v.
City of Mesa, #08-16206, 2010 U.S. App. Lexis 6188 (9th Cir.).
Oakland, California, city council approves a
settlement with 571 police officers who brought "don-and-doff"
overtime claims. In addition to paying $1.75 million in legal fees, current
officers will receive 130 hours of vacation time and 60 retired officers will
receive $3,500 each. Valladon v. City of Oakland, #3:06-cv-07478, 2009 U.S.
Dist. Lexis 97485 (N.D. Calif. 2009).
Arbitrator finds that a federal correctional
institution violated the bargaining agreement and the FLSA by failing to pay
officers for necessary pre- and post-shift activities. “… neither an employee
nor a union can voluntarily agree to not be paid for performing work in excess
of the regular work day.” 29 C.F.R. §785.11 Federal Bur. of Prisons (La Tuna)
and AFGE L-83, FMCS Case #060908/05274-1, 126 LA (BNA) 1271 (Curtis, 2009).
Arbitrator awards double back pay to federal correctional
officers and health workers in Texas who were unpaid for the time spent getting
freshly recharged radio batteries. Correctional officers and staff are on-duty
from the moment they set foot on institution grounds. In addition to nearly $1
million in pay and liquidated damages, the union is entitled to an award of
attorney’s fees. Fed. Bur. of Prisons and AFGE L-1006 (II), FMCS Case #07/04342,
126 LA (BNA) 705 (Nicholas, 2009).
A class action has been filed by employees of a phone
service claiming that they should have been paid for off the clock responses to
e-mail and text messages at all hours of the day.” Agui v. T-Mobile, USA,
#1:09-cv-02955, Complaint (E.D.N.Y. 2009).
Differing from other courts, in an opinion with
148 endnotes, a federal judge granted a summary judgment in favor of
management, holding that time spent donning and doffing police gear by Phoenix
patrol officers is not compensable under the Fair Labor Standards Act. Dager v.
City of Phoenix, #2:06-cv-01412, 2009 U.S. Dist. Lexis 20205 (D. Ariz.).
A federal jury in San Diego found that the time
that eight police officers spent performing various tasks prior to their shifts
was not compensable under the Fair Labor Standards Act. The officers alleged
that departmental policy required them to load equipment into their squad cars
and to check for e-mails and voicemail before their shifts began. Abbe v. City
of San Diego, #05cv1629 (S.D. Cal.). In an earlier ruling the court found that
the "time spent donning and doffing safety gear is de minimis as a matter
of law," and is not compensable. See 2007 U.S. Dist. Lexis 87501, 2007 WL
4146696; and 2006 U.S. Dist. Lexis 79010.
Federal court rejects the
claims of a federal officer who sought overtime for the period spent while
commuting to work in a agency vehicle; “time spent by law enforcement officers
driving to and from work in government-owned police vehicles [is] not
compensable under the FLSA.” Wolfen v. U.S., #03-2665C, 84 Fed. Cl. 662, 2008
U.S. Claims Lexis 345. Corrections employees hired by a private
prison-management organization were entitled a conditional certification of a
class action consisting of corrections officers, corrections counselors, case
managers, and clerical employees where they alleged that management regularly
required them to work off-the-clock before and after their shifts. Barnwell v.
Corrections Corp. of Amer., # 2:2008-cv-02151, 2008 U.S. Dist. Lexis 104230 (D.
Kan.).
In a case where over 15,000 NYPD officers claimed
that the city violated FLSA overtime provisions involving millions of dollars
in damages, the court rules that management could "limit the availability
of future overtime to officers who consistently choose cash compensation for
mandatory overtime. An officer must therefore decide whether he or she wishes
to have greater future overtime opportunities or whether the officer prefers to
be compensated in cash for the overtime he or she has already worked."
Scott v. City of New York, 2008 U.S. Dist. Lexis 94075 (S.D.N.Y.).
Federal Air Marshals are not exempt from limitations
on overtime earnings; the Congress could have expressly exempted them from
FLSA, as it did with customs-service pilots. Management is exempted from paying
overtime under §207(a) until the number of hours worked by an Air Marshal
within a seven-day work period exceeds forty-three hours. Federal Air Marshals
v. United States, #06-233, 2008 WL 4997346, 14 WH Cases2d (BNA) 442 (Fed. Cl.
2008); prior ruling at 74 Fed. Cl. 484, 2006 U.S. Claims Lexis 369.
Management violated the bargaining agreement and
the FLSA when it did not compensate prison correctional officers for required
pre-shift duties, where duties took substantial time and were indispensable.
"All of the rounds of ammunition in the tower have to be counted by the
on-coming officer ... to unload all clips ... then reload the clips and place
them back in the weapons before the other officer can leave." The average
time it took to perform the pre-shift activities was 30 minutes. Federal Bur.
of Prisons and AFGE L-1242, FMCS Case #05-57849, 125 LA (BNA) 707 (Calhoun,
2008).
Federal court declines to dismiss an overtime
lawsuit brought by school resource officers. Whether the county police
department and Board of Education were separate and independent employers for
purposes of the special detail exemption of 29 U.S. Code. §207(p)(1) and 29
C.F.R. § 553.227, is a question of fact. Baltimore Co. FOP L-4 v. Baltimore
Co., #06-2709, 2008 U.S. Dist. Lexis 49457 (D.Md.).
Fire alarm inspectors were not entitled to pay
for commuting time even though they carried extensive materials to their first
inspection site. The Portal-to-Portal Act provides that ordinary commuting time
is not compensable under FLSA, and carrying a briefcase does not transform
commuting time into work time. Singh v. City of New York, #06-2969-cv, 524 F.3d
361, 2008 U.S. App. Lexis 9228, 13 WH Cases2d (BNA) 865 (2nd Cir.).
Jail and patrol officers for a county sheriff's
dept. who work part-time as civilian communications personnel do not need to be
paid at the same rate that they earn as peace officers, because work performed
in the communications division "is in a different capacity" from the
work they perform in the detention and patrol divisions. Communications
personnel perform civilian functions, not law enforcement duties. W&H Opin.
Letter # FLSA2008-5NA, 2008 DOLWH Lexis 6.
Arbitrator affirms a past practice of using the
two-tier formula for calculating overtime. Special pay supplements are
excludable. City of Santa Rosa and POA, CSMCS Case No. ARB-06-0595, 124 LA
(BNA) 1463 (Staudohar, 2008).
U.S. Dept. of Labor issues an advisory ruling
that certain police officers who perform security duties during their off duty
hours for a particular convention center and sports arena are not city
employees for overtime purposes. The secondary employer is a private non-profit
corporation. Factors that are relevant to the determination of whether two
agencies are separate employers include: whether the employers have separate
payroll, personnel and retirement systems; have separate budgets and funding
authorities; whether they are separate legal entities; whether they deal with
each other at arm's length concerning the employment of the individuals in
question; how they are treated under state law and whether one entity controls
the appointment of the officers of the other entity. Adm. W&H Letter
FLSA2007-12.
Seventh Circuit holds that a city is liable for
overtime earned by a 911 dispatcher while attending mandatory psychotherapy
sessions, plus travel time. Sehie v. City of Aurora, #04-2308, 432 F.3d 749,
2005 U.S. App. Lexis 28781 (7th Cir.). See also W&H Adm. Ltr., 1989 DoLWH
Lexis 7 (2 Aug. 1989).
Federal court rejects a town's defense that time
spent at the police academy was not compensable overtime under 29 C.F.R.
§553.226(b)(2) because the training was required for certification under state
law. That provision addresses training outside of normal working hours, whereas
29 C.F.R. §553.226(c) more specifically addressed training by police officers
at a training facility such as a police academy. Olsen v. Town of Loudon,
#06-cv-477, 2007 U.S. Dist. Lexis 24619 (D.N.H.).
Federal agents who are assigned government-owned
police vehicles are not entitled to be paid while commuting even though they
are required to drive directly from home to work and back without unauthorized
detours or stops. Adams v. U.S., #06-5040, 2006 U.S. App. Lexis 31065 (Fed.
Cir. 2006). [N/R]
Firefighters that voluntarily swap shifts with
each other are entitled to overtime for any extra duty within the reporting
period. Senger v. City of Aberdeen, #05-3803, 2006 U.S. App. Lexis 24467, 11 WH
Cases2d (BNA) 1537 (8th Cir. 2006). {N/R}
DoL rules that when a firefighter foregoes taking
a holiday, the holiday pay he receives for that holiday may be excluded from
calculation of the regular rate of pay for overtime purposes. Wage and Hour
Opin. Letter FLSA2006-18NA. {N/R}
Labor Dept. rules that overtime hours apply
during prisoner transport assignments, even though a bargaining agreement
purports to limit duty time to 8 hours a day. A CBA cannot override federal
overtime laws. U.S. Dept. of Labor, Wage and Hour Div. Opinion Letter,
#FLSA2006-12NA (2006). [2006 FP Nov]
Labor Dept. holds that an agency is not required,
under the Fair Labor Standards Act, to compensate police officers for time
spent in training on the use of a firearm that they carry voluntarily during
their off-duty hours. Wage and Hour Opinion Letter, FLSA2006-19. [2006 FP Oct]
Inmates performing work in or for a prison are
not "employees" under the Fair Labor Standards Act and are not
entitled to the federal minimum wage. Loving v. Johnson, #05-10679, 2006 U.S.
App. Lexis 16968, 11 WH Cases2d (BNA) 1025 (5th Cir. 2006). {N/R}
Corrections workers were not entitled to 24-hours
a day overtime compensation for time they spent when they remained at prison
for their own safety while Hurricane Georges passed over Puerto Rico. The
applicable Office of Personnel Management regulation permits the deduction of
sleep time during a 24-hour shift from employee's payment without any implied
or express agreement between employer and employees, and is a valid
construction of the FLSA. Time spent sleeping is not work time. Blanco v.
United States, #00-2208, 2006 U.S. Dist. Lexis 32237, 11 WH Cases2d 1064 (D.
P.R. 2006). {N/R}
Dept. of Labor rules that a city's police
officers are exempt from overtime for hours worked as for a private security
contractor, even if the city provides the officers with workers' compensation
coverage while employed by a private contractor. W&H Opinion Letter
FLSA2006-13. {N/R}
Labor Dept. issues opinions that FLSA exempt
employees cannot be docked for lost or broken equipment (including laptops and
cell phones); exempt workers who fail to make up part of workday (because of a
personal absence) cannot be disciplined; canine officers can be paid less than
their regular rate for dog care; and a civilian code enforcement officer can
volunteer as an unpaid police reserve officer without running afoul of the
FLSA. Wage and Hour Opinion Letters, FLSA2006- 2, 6, 7 and 10. [2006 FP Jun]
Firefighters were entitled to have lump-sum
buyouts of their sick leave included in their regular rate of pay, for purposes
of calculating overtime under the Fair Labor Standards Act. Acton v. City of
Columbia, #04-3985, 436 F.3d 969, 2006 U.S. App. Lexis 3005, 11 WH Cases2d
(BNA) 359 (8th Cir. 2006). {N/R}
Time spent by an emergency dispatcher to attend
counseling sessions mandated by the city was compensable overtime. Schie v.
City of Aurora, #04-2308, 432 F.3d 749, 11 WH Cases 2d (BNA) 129, 2005 U.S.
App. Lexis 28781 (7th Cir. 2005). {N/R}
Los Angeles County Board of Supervisors agreed to
pay $1.475 million to settle two FLSA lawsuits brought by 140 county social
workers and supervisors who claimed that they were not paid overtime. The
county's Claims Board warned that if the cases proceeded to trial, the
plaintiffs might recover as much as $24 million. Ellerd v. Co. of L.A., #CV
05-1211 and Le v. Co. of L.A., #CV 05-4200, 43 (2121) G.E.R.R. (BNA) 830 (C.D.
Cal. 2005). {N/R}
DoL rules that an employee performing two jobs
for the same entity can be paid overtime based on two separate rates, provided
that the employee and the employer have reached an agreement permitting such an
arrangement. Wage and Hour Opinion Letter, 2005 DOLWH Lexis 22, 43 (2116)
G.E.R.R. (BNA) 696 (Feb. 14, 2005). [2005 FP Oct]
Citing the Portal-to-Portal Act, a federal court
has dismissed a prolonged suit that claimed that federal law enforcement
officers and agent were owed compensation for commuting in government-provided
vehicles. Adams v. U.S., #90-162C, 2005 U.S. Claims Lexis 113 (2005). {N/R}
For overtime purposes, "longevity pay,
educational incentive pay, and senior officer pay must be added to the CBA's
basic annual salary calculation." Wheeler v. Hampton Township, #04-1728,
399 F.3d 238, 2005 U.S. App. Lexis 3217 (3d Cir. 2005). {N/R}
The reasons for terminating a police canine
officer were legitimate, and because more than seven months had passed since he
raised an overtime claim under the FLSA, there was no proof the city retaliated
against him for filing an overtime lawsuit. Grey v. City of Oak Grove, Mo.,
#03-3532, 396 F.3d 1031, 10 WH Cases 2d (BNA) 495, 2005 U.S. App. Lexis 1453
(8th Cir. 2005). {N/R}
Individuals who worked as unpaid police officers
for a small Texas town to retain their commissions as peace officers under
state law were "volunteers" under the FLSA, and should not be counted
as "employees" for purposes of finding that the town, which had only
three paid police officers at any time, met the five-employee threshold for
public agencies to be covered by act's maximum hour requirements. The peace
officer commissions provided by the town were only a formality. Cleveland v.
City of Elmendorf, #04-50103, 2004 U.S. App. Lexis 21595 (5th Cir. 2004). {N/R}
"Tribal law enforcement clearly is a part of
tribal government" and is exempt from overtime provisions in the FLSA.
Snyder v. Navajo Nation, #02-16632, 371 F.3d 658, 9 WH Cases2d (BNA) 1190, 2004
U.S. App. Lexis 11425 (9th Cir. 2004).{N/R}
City-county police officers that moonlighted as
security officers for a city Housing Authority were not entitled to time and
one-half overtime pay. The Housing Authority was a separate, not a joint
employer. Johnson v. Shawnee Co. Bd. of Co. Cmsnrs, #03-3196, 2004 U.S. App.
Lexis 11363 (10th Cir. 2004). {N/R}
Ninth Circuit holds that an officer is not
entitled to select a specific day to use his comp time. Mortensen v. County of
Sacramento, #03-15185, 2004 U.S. App. Lexis 10163 (9th Cir. 2004). [2004 FP
Aug]
In a suit brought by paid officers, a federal
court in Texas finds that unpaid reserve polices officers were volunteers, not
employees, under the FLSA. Cleveland v. City of Elmendorf, #SA-02-CA-0395, 2004
U.S. Dist. Lexis 925, 9 WH Cases2d (BNA) 539 (W.D.Tex. 2004). {N/R}
Arbitrator concludes that he lacked authority to
interpret the FLSA, absent a specific delegation of such authority in the
bargaining agreement. He noted that authority of an arbitrator flows from the
Agreement between both Parties and not from the FLSA. City of Cincinnati and
L-48 IAFF, 119 LA (BNA) 421, AAA Case #52-390-00601-03 (Donnelly, 2004). [2004
FP May]
Arbitrator rejects a claim for two hours overtime
because a corrections officer was required to visit a physician to obtain a
note excusing a two-day sick period; officer was entitled to be paid for his
$15 co-pay and $11 vehicle expense. U.S. Penitentiary and AFGE L-2343, 118 LA
(BNA) 1324, FMCS #02/16571 (Pratte, 2003). [2004 FP Jan]
Fifth Circuit holds that the FLSA does not
require a public employer to authorize comp. time use as specifically requested
by an employee. It only requires that the comp. time is allowed within a
reasonable period after the employee requests its use. Houston Police Officers
Union v. City of Houston, #01-21117, 330 F.3d 298, 2003 U.S. App. Lexis 8096, 8
WH Cases2d (BNA) 1121 (5th Cir. 2003).{N/R}
The Supreme Court has ruled 9-to-0 that when an
employee brings a FLSA suit in state court, the employer can remove the claim
to federal court. Breuer v. Jim's Concrete of Brevard, #02-337, 123 S.Ct. 1882,
2003 U.S. Lexis 3677 (2003). {N/R}
Supreme Court rules that a FLSA claim, filed in
state court, can be removed from state to federal court. Breuer v. Jim's
Concrete, #02-337, 123 S.Ct. 1882, 2003 U.S. Lexis 3677 (2003). {N/R}
The actual number of hours worked, including
overtime, should be used in calculating firefighters "hourly pay" for
purposes of setting damages due for underpayment. Singer v. City of Waco,
#01-51185, 324 F.3d 813, 2003 U.S. App. Lexis 5858, 8 WH Cases2d (BNA) 993 (5th
Cir. 2003). {N/R}
Officer loses a retaliation suit against the
town. Disciplinary action was fairly imposed for unrelated misconduct. Kearney
v. Town of Wareham, #02-1264, 2002 U.S. App. Lexis 25133, 8 WH Cases2d (BNA)
513 (1st Cir. 2002). [2003 FP Mar]
Voluntary extra duty assignments for a city court
were compensable at regular police hourly rates plus 50%. The fact that for 25
years the city paid a lower rate, never paid overtime, and the officers never
complained is no excuse. The officers are entitled to double the differential
(liquidated damages) for 3 years prior to filing the suit, plus legal fees. Cox
v. Poughkeepsie, #01 Civ. 3794, 209 F.Supp.2d 319, 2002 U.S. Dist. Lexis 12579
(S.D.N.Y. 2002). [2002 Oct. FP]
Seventh Circuit rules that a city was required to
pay a firefighter overtime for time spent in paramedic training, even though he
dropped out before completion; the city was entitled to reimbursement for some
of its training expenses. Heder v. City of Two Rivers, #01-4118, 295 F.3d 777,
2002 U.S. App. Lexis 13832, 7 WH Cases2d (BNA) 1665 (7th Cir. 2002). {N/R}
OPM issues a final rule on federal firefighter
basic and overtime pay. The new method eliminates standby duty pay and
authorizes overtime for both FLSA exempt and nonexempt firefighters. OPM
Firefighter Pay, 67 Fed. Reg. 15463 (4/2/02). [N/R]
Federal court dismisses a suit by California
state corrections officers seeking damages against their superiors, in their
individual capacities for failing to timely pay retroactive overtime pay
increases. The court held that managers were not "employers" under
the FLSA, and even if they were, sovereign immunity applies because the state
was the real party in interest. Baird v. Kessler, #S-00-1619, 172 F.Supp.2d
1305, 2001 U.S. Dist. Lexis 19106 (E.D. Cal. 2001). [N/R]
Federal court dismisses a suit by California
state corrections officers seeking damages against their superiors, in their
individual capacities for failing to timely pay retroactive overtime pay
increases. The court held that managers were not "employers" under
the FLSA, and even if they were, sovereign immunity applies because the state
was the real party in interest. Baird v. Kessler, #S-00-1619, 172 F.Supp.2d
1305, 2001 U.S. Dist. Lexis 19106 (E.D. Cal. 2001). [N/R]
Appeals court denies $2.8 million overtime claim
for corrections officers who change into and out of their uniforms. Employers
do not have to pay for change time if the bargaining agreement, or a recognized
custom or past practice excludes such payments. Turner v. Philadelphia,
#00-1519, 262 F.3d 222, 7 WH Cases 2d (BNA) 339, 2001 U.S. App. Lexis 18785
(3rd Cir.). [2001 FP 151-2]
A municipal or county police department is not a
proper party to a civil action for overtime claims, because it is a sub-unit of
a governmental entity and has no capacity to sue or be sued in its own name:
Johnson v. Unif. Govt. of Wyandotte Co./Kansas City, KS, 2000 U.S. Dist. Lexis
2969, 6 WH Cases2d 1227 (Unpub., D.Kan. 2000); Baker v. Colo. Springs Police
Dept., 1994 U.S. App. Lexis 33679, 1994 WL 673070 (10th Cir. 1994); Fritchey v.
Denver Police Dept., 1994 U.S. App. Lexis 8135, 1994 WL 142474 (10th Cir.
1994); Whayne v. State of Kansas, 980 F.Supp. 387, 391 (D. Kan. 1997). {N/R}
Tenth Circuit reinstates a FLSA retaliation claim
of a police chief who claimed that he was demoted for supporting his wife's
overtime claim against the city. Hinsdale v. City of Liberal, #00-3087, 2001
U.S. App. Lexis 19349 (Unpub. 10th Cir.). {N/R}
Six suspensions of a week or less over a six year
period was not sufficient to establish an "actual practice" of
imposing improper suspensions. Block v. City of Los Angeles, #99-56061, 253
F.3d 410, 2001 U.S. App. Lexis 11749, 7 WH Cases 2d (BNA) 4 (9th Cir.). {N/R}
A city that adopts a 42 day duty cycle for police
officers still can have a 28 day "work period" for purposes of sec.
207(k). Nothing in the FLSA indicates that duty cycles of officers need have
any correlation to officers' work periods. Franklin v. City of Kettering,
#00-3247, 246 F.3d 531, 2001 U.S. App. Lexis 6068, 2001 FED App. 0108P, 6 WH
Cases 2d (BNA) 1615 (6th Cir.). {N/R}
Sued for overtime, a city may offset against its
liability under the FLSA, amounts paid to police pursuant to the collective
bargaining agreement. Nolan v. City of Chicago, 125 F.Supp.2d 324, 2000 U.S.
Dist. Lexis 18864 (N.D. Ill. 2000). {N/R}
State officials who were sued in their individual
capacities by an employee for alleged retaliation under the FLSA could not
claim sovereign immunity because the state will indemnify them for any adverse
judgments and thus that state was the real party in interest. Hartman v. Regents
of Univ. of Colo., #99CA1210, 2001 Colo. App. Lexis 310, 6 WH Cases2d (BNA)
1297 (Unpub. Colo. App.). {N/R}
Arbitrator orders a theme park to pay for time
spent changing between costumes and personal clothing. Teamsters L-385 and Walt
Disney World, NLRB complaint (Chumley 2001). Disneyland California recently
settled similar claims for $1.7 million. {N/R}
Federal prison system settles overtime claims for
$120 million; officers were not paid when getting or returning their equipment,
before and after their shifts. AFGE and Dept of Justice, 38 (1879) G.E.R.R.
(BNA) 1065 (Aug. 2000). [2000 FP 168-9]
Federal court refuses to dismiss overtime claim
where officers volunteered for extra duty to be paid by the Housing Authority.
Barajas v. Unified Govt. of Kansas City, Kan., #99-2448, 87 F.Supp.2d 1201,
2000 U.S. Dist. Lexis 2976, 6 WH Cases2d (BNA) 1220 (D. Kan.), citing 29 CFR
553.227, 52 FR 2032 (Jan. 16, 1987); FLSA Opin. Letter, 1993 WL 901149 (July 1,
1993). [2000 FP 150-2] See also, Nolan v. City of Chicago, 125 F.Supp. 2d 324,
2000 U.S. Dist. Lexis 18864 (N.D. Ill. 2000).
Federal court in New Jersey finds that officers
who voluntary work secondary employment, when the jobs assigned and paid by the
city, are entitled to time-and-one-half compensation under the FLSA. Cahill v.
City of New Brunswick, 99 F.Supp.2d 464, 2000 U.S. Dist. Lexis 7193 (D.N.J.).
[2000 FP 119]
Supreme Court allows public employers to compel
workers to use their accumulated comp time. Christensen v. Harris Co., #981167,
120 S.Ct.1655, 2000 U.S. Lexis 3003, 5 WH Cases2d (BNA) 1825. [2000 FP 102]
Federal court's order to a sheriff, to reimburse
the county more than $1 million for unpaid overtime, is reversed. Fifth Circuit
holds that a public official or employee is not required at common law to
indemnify the city or county for liability incurred by the official or
employee. Barfield v. Madison Co., Miss., #9860636, 212 F.3d 269, 2000 U.S.
App. Lexis 9536, 6 WH Cases2d (BNA) 1 (5th Cir.). [2000 FP 102-3]
Border Patrol can be liable for double damages in
supervisory overtime; no presumption of good faith. Adams v. U.S., #96-93C,
2000 U.S. Claims Lexis 58, 38 (1859) G.E.R.R. 513 (4/5/00). [2000 FP 88-9]
Supreme Court holds that the FLSA does not
prohibit public employers from mandating the use of accrued compensatory time.
120 S.Ct. 1655, 2000 U.S. Lexis 3003, 5 WH Cases2d (BNA) 1825. The majority
rejected a DoL opinion which said that the FLSA prohibits a public employer
from requiring workers to take comp time on an as-required basis. The Court
also declined to review another cases raising similar issues, in which the
employer prevailed. Collins v. Lobdell, 188 F.3d 1124, 5 WH Cases2d 929 (9th
Cir.), cert. den. #99-592 & #99-788 sub nom Spokane Val. Fire Ptn. Dist v.
Collins.
Mandatory comp time: also see note at 5 Tul. L.
Rev. 2171 (1999); Baker v. Stone Co., 41 F.Supp.2d 965, 1999 U.S. Dist. Lexis
3331, 5 WH Cases2d (BNA) 414 (W.D. Mo.); issue distinguished in Theisen v.
Maple Grove, 41 F.Supp.2d 932, 1999 U.S. Dist. Lexis 415 (D. Minn.).
Federal court allows claim for double damages in
LAPD overtime and comptime lawsuit. Comptime is "paid" when it is
used, not when it is booked. Claim could reach $200 to $500 million. Kimpel v.
Williams, #CV93-3441 and Huff v. Parks, #CV98-10245 (C.D.Cal. 1999), 37
G.E.R.R. (BNA) #1793. [1999 FP 71-2]
Overtime payment schedule negotiated by a village
and the union, under which police officers were paid on weekly basis, but
overtime pay was accumulated and paid by separate check on monthly basis,
violated the prompt payment portion (Sec. 7a) of the FLSA. Brooks v. Ridgefield
Park NJ, 185 F.3d 130, 5 WH Cases2d (BNA) 801 (3rd Cir. 1999). {N/R}
Firefighters were entitled to have sleep time
counted as work time; gap time disallowed. Carter v. Charleston, 995 F.Supp.
620 (D.S.C. 1997). {N/R}
Border Patrol canine officers lose overtime claim
for commuting time under Portal-to-Portal Act. Bobo v. U.S., 37 Fed. Cl. 690,
1997 U.S. Claims Lexis 82, 3 WH Cases2d (BNA) 1587. [1998 FP 86-7]
Appeals court rejects suit by police officers who
must commute long distances to a mandatory training program. Imada v. City of
Hercules, #97-15405, 138 F.3d 1294, 4 WH Cases2d (BNA) 705, 1998 U.S. App.
Lexis 4970 (9th Cir.). [1998 FP 70]
Officers who must maintain fitness standards for
SWAT team assignments are not entitled to overtime pay for off-duty workout
sessions at the gym. Dade Co. v. Alvarez, 124 F.3d 1380, 1997 U.S.App. Lexis
28604 (11th Cir.). SWAT team won $2 million for overtime in the District Court
in 1995. [1996 FP 42 & 1998 FP 7]
Federal court allows overtime for a police
officer who was not compensated for caring for his firearm and cleaning his
takehome car. He also could recover for time spent caring for his uniforms,
except that claim was covered by the bargaining agreement. Hellmers v. Town of
Vestal, 3 WH Cases2d (BNA) 1837, 1997 U.S.Dist. Lexis 10125, 969 F.Supp. 837
(N.D.N.Y.). [1997 FP 165-6]
The sheriff and county board of supervisors can
be personally liable for violating the anti-retaliation section of the FLSA,
Sec. 15(a)(3). Barfield v. Madison Co., 984 F.Supp. 491, 1997 U.S. Dist. Lexis
18729, 4 WH Cases2d (BNA) 426 (S.D.Miss. 1997); reversed at 212 F.3d 269, 2000
U.S. App. Lexis 9536, 6 WH Cases2d (BNA) 1 (5th Cir. 2000). {N/R}
Former police academy cadets lose landmark suit
claiming overtime for a residential, ten-week basic training program. Banks v.
City of Springfield, 959 F.Supp. 972 (C.D.Ill. 1997). [1997 FP 166]
Private ambulance service is "engaged in
interstate commerce" for FLSA purposes. Jerome v. Zorich, 1997 U.S.App.
Lexis 16781, 118 F.3d 682 (9th Cir.). {N/R}
California to pay $10 million to correctional
officers who were not paid for performing minor tasks at the beginning and end
of their shifts. Correctional Peace Officers Assn. v. Wilson, 109 (232)
L.A.D.J. {V&S} 6 (E.D.Cal. 1996). [1997 FP 23]
Time spent in cleaning & fueling vehicles was
not exempt under the portal-to-portal act; caring for equip. & uniforms was
compensable. Treece v. Little Rock, 923 F.Supp. 1122 (E.D.Ark. 1996). {N/R}
Fed. app. ct. upholds a constitutional challenge
to the "salary basis test." Yourman v. Dinkins, 84 F.3d 655 (2d Cir.
1996). [1996 FP 137- 8]
Federal court refuses to dismiss overtime claims
of police officers who must care for their guns, uniforms and take-home cars
while off-duty. Treece v. Little Rock, 923 F.Supp. 1122 (E.D.Ark. 1996). [1996
FP 138]
Federal appeals court holds that overtime compensation
includes premium pay, but not bonuses for unused sick leave. Featsent v.
Youngstown, 70 F.3d 900 (6th Cir. 1995). [1996 FP 101-2]
The sheriff is not the employer of an inmate in a
work-release program. Inmate was not obliged to "donate" 10% of his
hearings to a crime victims compensation fund. Reimonenq v. Foti, 72 F.3d 472
(5th Cir. 1995). {N/R}
City did not violate FLSA when it extended
officers' regular workshifts in anticipation of application of the law to local
governments. Ball v. Dodge City, 67 F.3d 897 (10th Cir. 1995). {N/R}
Officers' overtime pay claim for 15 minutes of
preshift roll-call is upheld. Barefield v. Vil. of Winnetka, 81 F.3d 704, 3 WH
Cases2d 353 (7th Cir. 1996). {N/R}
Article: "The impact of electronic paging
and on-call policies on overtime pay under the FLSA," 11 (2) The Labor
Lawyer (ABA) 231-246 (Summer, 1995). Amer. Bar Assn. (312) 988-5555. {N/R}
Inmates in a prisoner industry program are not
entitled to minimum wage payments. Lentz v. Anderson, #3:93CV7274 (N.D. Ohio
1995). [1995 FP 134]
City was entitled to reduce the hourly wage rate
paid firefighters, including overtime, to equal the normal annual pay rate, to
avoid wage liability under the FLSA. York v. City of Wichita Falls, 48 F.3d 919
(5th Cir. 1995). [1995 FP 102]
Fed. app. court reverses overtime award for
N.Y.C.T.A. police canine officers. Reich v. N.Y.C.T.A., 45 F.3d 646 (2nd Cir.
1995). [1995 FP 70]
Meal periods was work time for municipal
firefighters. Rotondo v. City of Georgetown SC, 869 F.Supp. 369 (D.S.C. 1994).
{N/R}
Corrections dept could not deduct meal periods
from work time for officers required to remain on prison grounds. Brinkman v.
Dept. of Corrections, 21 F.3d 370 (10th Cir. 1994). [1995 FP 55-6]
University police officers were entitled to
overtime after 40 hours of work, not 43 hours for other classes of police
officers. Adams v. Pittsburg St. Univ., 832 F.Supp. 318 (D.Kan. 1993). {N/R}
Federal court in N.Y.C. held that commuting time
for police canine officers is compensable; appeals court reverses. Reich v.
N.Y. City Transit Auth., 839 F.Supp. 171 (E.D.N.Y. 1993); 45 F.3d 646, 1995
U.S. App. Lexis 832, 2 WH Cases2d (BNA) 833 (2nd Cir. 1/17/95). [1994 FP
149-50]
Federal appeals court finds that summary judgment
is inappropriate for overtime dispute. Whether county EMTs are exempt depends
on facts of case. Wouters v. Martin County, 9 F.3d 924 (11th Cir. 1993); cert.
petit. filed, #93-1867, see 62 LW 3867. {N/R}
Eighth Circuit declines to follow overtime
decision of the Ninth Circuit and rules that asst. fire chiefs are exempt,
despite the fact their pay is docked for absences. Mere possibility that an
employer might make an improper pay deduction does not defeat an employee's
salaried status. McDonnell v. City of Omaha, 999 F.2d 293/at 296 (8th Cir.
1993); cert.den. No, 93-890, 62 LW 3573 (1994). [1994 FP 72-3]
Federal courts uphold firefighter overtime;
employment agreement ruled coercive. Johnson v. City of Columbia, 949 F.2d 127
(4th Cir. en banc 1991). [1993 FP 8]
Police detectives in Emporia initially successful
in asserting overtime claims for lunch periods; liquidated (double) damages
allowed. Federal appeals court reverses, and holds that detective meal periods
were not work periods. Armitage v. City of Emporia, 782 F.Supp. 537 (D. Kan.
1992), reversed 982 F.2d 430 (10th Cir. 1992). [1993 FP 53]
Federal court in Baltimore rules FD-EMS personnel
were not exempt from FLSA 40-hour overtime provision. Nalley v. Mayor of
Baltimore, 796 F.Supp. 194 (D.Md. 1992). [1993 FP 54]
A federal trial court in Minnesota and federal
appeals court in California, rule that inmates employed in prison industries,
are not covered by FLSA minimum wage provisions. McMaster v. State of Minnesota,
#4-92-1058, 31 (1515) G.E.R.R. (BNA) 673 (D.Minn. 1993); Hale v. State of
Arizona, 61 LW 2684 (9th Cir. en banc 1993). [1993 FP 103-4]
Federal court in NC holds that fire dept. could
not deduct 8-hours of sleep time from 24-hour shifts because employees never
agreed to the deduction. Burgess v. Catawba Co., 805 F.Supp. 341 (W.D.N.C.
1992). [1993 FP 105]
Federal appeals court says state must pay inmates
the minimum wage for employment services. Hale v. Arizona, #88-15785, 30 (1472)
G.E.R.R. (BNA) 960 (9th Cir. 1992). [1992 FP 117-8]
Employee can receive double [liquidated] damages
even where the employer demonstrates good faith and reasonable grounds, if the
judge so requires in the exercise of discretion, under 29 U.S. Code 260. Hayes
v. McIntosh, 604 F.Supp. 10 (N.D. Ind. 1094). [1992 FP 153]
Federal jury awards members of bomb squad 12
hours overtime pay for each 24-hour period of on-call status. Dornbos v.
O'Grady, 1990 WL 179711 (N.D. Ill. 1990). [1992 FP 8]
Employees who were required to stay overnight in
a mental facility were entitled to additional pay and overtime for the total
time spent at the institution, without an 8-hour deduction for "sleep
time." Hultgren v. County of Lancaster, 913 F.2d 498 8th Cir. (1990).
Firefighter who was called to work during period
which he was on "administrative leave with pay," was entitled to time
and one-half, not just the additional half-time. City of Yukon v. Firefighters
Local 2055, 792 P.2d 1176 (Okla. 1990).
Federal judge may exercise discretion and enter
liquidated (double) damages in overtime cases even if the employer acts in good
faith, citing 29 U.S. Code 260. Hayes v. McIntosh, 604 F.Supp. 10 (N.D. Ind).
{N/R}
Appeals court holds that the Congress did not intend
to make overtime provisions of the fair labor standards amendments of 1985
retroactive. Austin v. City of Bisbee, 855 F.2d 1429 (9th Cir. 1988).
Federal Court rejects overtime claims for jury
and military duty, sick and annual leave; not part of FLSA working hours.
Lanehart v. Devine, 615 F.Supp. 1300 (D. Md. 1985).
Off-duty Louisiana police officers who appear in
court were entitled to statutory witness fee or overtime, but not both. Jones
v. City of Lafayette, 539 So.2d 672 (La. App. 1989).
Taking phone calls at home is work time,
compensable at overtime rates. Staying at home in case the phone rings is
"standby" time, and although compensable, is not "work
time" at overtime rates. Hickey v. State of Kansas Corp. Cmsn., 765 P.2d
1108 (Kan. 1988).
Kansas Supreme Court overturns back pay award for
meal time; restrictions were not sufficient to call such periods "work
time" and collectively bargained agreement excluded payment. Atteberry v.
Ritchie, 756 P.2d 424 (Kan. 1988).
Federal appeals court rejects pre-Garcia overtime
claims; supreme court decision not retroactive. Austin v. City of Bisbee 855
F.2d 1429 (9th Cir. 1988).
Public employees entitled to unpaid comp time
when they leave their employment. Schoonover v. Bonner County, 750 P.2d 95
(Idaho 1988).
Federal court rules that accumulated overtime is
not a "property right" and upholds rule that comp time not taken by
year end disappears and is forfeited. Jackson v. Dept. of Public Safety of La.,
675 F.Supp. 1025 (M.D. La. 1987).
Firefighters win appeal; they are entitled to
overtime pay for periods of "leave with pay" such as illness,
vacation, jury duty and military reserve or guard duty. Lanehart v. Horner, 818
F.2d 1574 (Fed. Cir. 1987).
Management could abolish 12-hour work shifts to
avoid overtime pay liability. Hennepin Co. Ambulance Drivers Assn. v. County of
Hennepin, 394 N.W.2d 206 (Minn. App. 1986).
Kentucky and Ohio disagree over whether
"roll-call" periods are work time. City of Louisville v. Gnagie, 716
S.W.2d 236 (Ky. 1986) and Ebright v. Whitehall, 455 N.E.2d 1307 (Ohio App.
1982).
Federal Court rejects overtime claims for jury
and military duty, sick and annual leave; not part of FLSA working hours.
Lanehart v. Devine, 615 F.Supp. 1300 (D. Md. 1985).
Phoenix suburb hit with large back pay verdict;
appellate court concludes half-hour meal period was work time. Pendergast v.
City of Tempe. 691 P.2d 726 (Ariz. 1984); Armour & Co. Wantock, 323 U.S.
126 (1944).
State of Michigan obligated to pay city
firefighters" overtime claims, mandated by state law. City of Adrian et al
v. Michigan, 362 N.W.2d 708 (Mich. 1984).
Meal time for patrol officers was work time.
Madera Police Off. Assn. v. City of Madera, 204 Cal.Rptr. 422 (Cal. 1984).
Dept. must pay accumulated "comp" time
to employee if it has done so in past years (when hours were accumulated).
Oswald v. County of Aiken, 315 S.E.2d 146 (S.C. App. 1984).
Overtime, lunch hours, coffee breaks and work
assignments not a matter for the federal court. Brown v. Brienen, 722 F.2d 360
(7th Cir. 1983).
City or county not liable for overtime pay in
excess of amount budgeted by commissioners. Ball v. Escambia County Commission,
439 So.2d 148 (Ala. 1983).
Ohio appellate court finds roll-call and meal
times are working periods and employees are entitled to time-and-one-half.
Ebright v. City of Whitehall, 8 Ohio App.3d 29, 455 N.E.2d 1307 (1982).
Lunch periods are not working time even if
subject to recall and numerous conditions and restrictions are imposed. Fowler
v. State Personnel Board, 185 Cal. Rptr. 292 (App. 1982).
Chicago fire paramedics get comp time, not extra
pay for compulsory off-duty training sessions. Nutter v. Blair, 430 N.E.2d 155
(Ill.App. 1981).
Meal periods of police officers held as
"working time" by Missouri court; officers were entitled to overtime
pay. Brooks v. Whaley, 613 S.W.2d 656 (Mo.App. 1980); also see L.A. Fire and
Police Prot. League v. City of Los Angeles, 23 Cal.App.3d 67, 99 Cal.Rptr. 908
(1972).
Restriction against excessive overtime for senior
officers does not violate age discrimination prohibitions. Freeman v. New York
City Dept. of Correction, 420 N.Y.S.2d 536 (Misc. 1979).
Reduction of work week agreement determined.
Ypsilanti Fire Fighters Union and City of Ypsilanti, Arbitration Award
#54-39-0213-77 (Ellman, 1977).
Off duty training as "comp time".
Wilson v. County of Santa Clara, 137 Cal.Rptr. 78 (App. 1977).
Court time includes luncheon breaks. City of
Allentown, Pa., and IAFF Local 302, (Alderfer, 1976).
Firemen's signing of release of city from paying
back overtime pay held invalid; city employee pay schedule ruled valid. Kucera
v. City of Wheeling, 215 S.E.2d 216 (W. Va. 1975).
Minimum Wage Legislation. Kentucky Municipal
League v. Commonwealth, 530 S.W.2d 198 (Ky. 1975).
Six minutes a violation. DeKalb Fire Fighters
Local 1236 and City of DeKalb, FMCS File #76K03131 (Cyrol, Dec. 1975).