Introduction to the Fair Labor Standards Act (FLSA)

A LL A BOUT THE A UTHORS

With offices in Los Angeles, San Francisco, Fresno, San Diego and Sacramento, the law firm of Liebert Cassidy Whitmore represents public agency management in all aspects of labor and employment law, labor relations, and education law. The Firm's representation of cities, counties, special districts, transit authorities, school districts, and colleges throughout California, encompasses all phases of counseling and representational services in negotiations, arbitrations, fact findings, and administrative proceedings before local, state and federal boards and commissions, including the Public Employment Relations Board, Fair Employment and Housing Commission, Equal Employment Opportunity Commission, Department of Labor and the Office for Civil Rights. The Firm regularly handles a wide variety of labor and employment litigation, from the inception of complaints through trial and appeal, in state and federal courts. The Firm places a unique emphasis on preventive measures to ensure compliance with the law and to avoid costly litigation. For more than thirty years, the Firm has successfully developed and presented training workshops and speeches on all aspects of employment relations for numerous public agencies and state and federal public sector coalitions, including the National League of Cities, National Association of Counties, International Personnel Management Association, United States Government Finance Officers Association, National Employment Law Institute, National Public Employer Labor Relations Association, California Public Employer Labor Relations Association, County Counsels’ Association of California, League of California Cities, California State Association of Counties, Public Agency Risk Management Authority, the Association of California School Administrators, the California School Boards Association, and the California Association of Independent Schools.

This workbook contains generalized legal information as it existed at the time the workbook was prepared. Changes in the law occur on an on going basis. For these reasons, the legal information cited in this workbook should not be acted upon in any particular situation without professional advice.

Copyright © 2020 Liebert Cassidy Whitmore. All rights reserved. No part of this publication may be reproduced, stored, transmitted, or disseminated in any form or by any means without prior written permission from Liebert Cassidy Whitmore.

T ABLE OF C ONTENTS

7-20 S

S ECTION 1 Overview of the Fair Labor Standards Act ....................................................................................................................8 A. Introduction and Summary of Requirements...................................................................................................8 1. Minimum Wage .......................................................................................................................................8 2. Overtime Compensation...........................................................................................................................8 3. Recordkeeping and Posting ......................................................................................................................8 4. Child Labor ..............................................................................................................................................8 5. No Retaliation ..........................................................................................................................................8 6. Equal Pay .................................................................................................................................................9 B. What the FLSA Does Not Require ..................................................................................................................9 1. State Wage and Hour Law .......................................................................................................................9 2. Overtime for Hours Worked Over Eight in a Day....................................................................................9 3. Meal and Break Periods ...........................................................................................................................9 4. Standby or On-Call Pay ...........................................................................................................................9 5. Premium and Severance Pays ................................................................................................................10 6. Limitations on Hours of Work ...............................................................................................................10 C. Remedies and Enforcement...........................................................................................................................10 1. Statute of Limitations .............................................................................................................................10 2. Remedies................................................................................................................................................10 3. Criminal Penalties ..................................................................................................................................11 S ECTION 2 Who is Covered by the FLSA? (or More Importantly, Who is Not Covered?) ...........................................................11 A. Introduction to Coverage Issues ....................................................................................................................11 B. Limited Exclusion for Elected Officials, Their Staff and Certain Employees of Legislative Bodies............12 C. Independent Contractors................................................................................................................................12 D. Trainees .........................................................................................................................................................13 E. Volunteers .....................................................................................................................................................13 F. Unpaid Interns ...............................................................................................................................................14 S ECTION 3 Hours Worked .............................................................................................................................................................14 A. Introduction ...................................................................................................................................................14 B. Distinction Between Work Time and Paid Time...........................................................................................14 C. Employees Cannot Volunteer Work Time ....................................................................................................14 D. Rounding and De Minimis Rules...................................................................................................................15 E. Employees Working in Two or More Agency Jobs ......................................................................................15 F. Meal Breaks...................................................................................................................................................16 G. Rest Breaks....................................................................................................................................................16 H. Breaks for Nursing Mothers ..........................................................................................................................16 I. Sleep Time ....................................................................................................................................................17 J. On-Call or Standby Time ..............................................................................................................................17 K. Pre- and Post-Shift Activities ........................................................................................................................18 L. Donning and Doffing ....................................................................................................................................18 M. Travel Time ...................................................................................................................................................19 1. Travel to and from Work........................................................................................................................19 2. Travel During the Workday ...................................................................................................................19 3. Overnight Travel Under the FLSA.........................................................................................................20 4. Overnight Travel Under California law .................................................................................................20 N. Training Time................................................................................................................................................21 1. General Rule ..........................................................................................................................................21

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2. Definition of Voluntary Attendance.......................................................................................................21 3. Definition of Training Directly Related to Employee’s Job...................................................................21 4. Exceptions ..............................................................................................................................................21 S ECTION 4 The Work Period .........................................................................................................................................................22 A. Basic Workweek Principles...........................................................................................................................22 1. Definition of a Workweek......................................................................................................................22 2. Requirement to Designate ......................................................................................................................22 3. Requirements Regarding Change of Workweeks...................................................................................22 4. Illustrations of Workweek Principles .....................................................................................................22 B. Public Safety 7(k) Work Periods ...................................................................................................................24 1. Introduction ............................................................................................................................................24 2. Definition of “Fire Protection Activities” ..............................................................................................24 3. Definition of “Law Enforcement Activities” .........................................................................................25 4. 7(k) Work Periods for Fire Protection Activities ...................................................................................25 5. 7(k) Work Periods for Law Enforcement Activities ..............................................................................26 6. Complete Overtime Exemption for Small Safety Departments .............................................................26 S ECTION 5 Overtime Exemptions ..................................................................................................................................................26 A. The General “White-Collar” Exemptions......................................................................................................26 1. The Salary Tests.....................................................................................................................................26 2. The Duties Tests.....................................................................................................................................27 B. The Highly Compensated Employee Exemption ..........................................................................................31 C. Exemption for Computer-Related Occupations.............................................................................................31 D. Special Exclusion for “First Responders” .....................................................................................................32 S ECTION 6 Compensatory Time Off ..............................................................................................................................................33 A. The Basic Requirements................................................................................................................................33 1. Distinction Between FLSA CTO and Non-FLSA CTO.........................................................................33 2. Employer and Employee Must Agree ....................................................................................................33 3. Credited at Time and One Half ..............................................................................................................33 4. Maximum Accrual Caps.........................................................................................................................34 B. Use of Accumulated FLSA CTO ..................................................................................................................34 1. “Reasonable Period” ..............................................................................................................................34 2. “Unduly Disrupt” ...................................................................................................................................35 3. Forced Use of CTO ................................................................................................................................35 4. There Are No FLSA Standards for Use of Non-FLSA CTO .................................................................35 5. Payment for Accumulated FLSA CTO ..................................................................................................36 S ECTION 7 The Regular Rate of Pay..............................................................................................................................................36 A. Overview .......................................................................................................................................................36 B. Calculation of the Regular Rate ....................................................................................................................37 C. Employees Working at Two or More Rates ..................................................................................................38 D. Payments that May be Excluded from the Regular Rate ...............................................................................38 E. Examples of Payments Included in the Regular Rate....................................................................................39 F. Timely Payments of Wages...........................................................................................................................39 S ECTION 8 Record Keeping ...........................................................................................................................................................40 A. Introduction ...................................................................................................................................................40

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B. Information Required for Non-Exempt Employees ......................................................................................40 C. Information Required for 7(k) Fire Protection/Law Enforcement Employees ..............................................41 D. Information Required for Exempt Employees...............................................................................................41 E. Timesheets for Exempt Employees ...............................................................................................................42 F. Posting Requirement .....................................................................................................................................42 G. Preservation of Records.................................................................................................................................42 1. The Following Documents Must Be Preserved for Three Years:..........................................................42 2. The Following Documents Must Be Preserved for Two Years:.............................................................42

E NDNOTES ...................................................................................................................................................................44

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O VERVIEW OF THE F AIR L ABOR S TANDARDS A CT

S ECTION 1

A. I NTRODUCTION AND S UMMARY OF R EQUIREMENTS

The Fair Labor Standards Act (“FLSA” or “the Act”) was enacted by Congress in 1938 in the midst of the Great Depression. It was intended to protect all covered workers from substandard wages, oppressive working hours, and conditions that were detrimental to the “maintenance of the minimum standard of living necessary for the health, efficiency, and general well-being of workers.” 1 In contrast to laws governing the rights of employees to collectively bargain, the FLSA was designed to give specific minimum protections to individual workers. 2

The following are six key components of the Act:

1. M INIMUM W AGE The first major component of the Act establishes a federal minimum hourly wage. 3 The federal minimum wage has been $7.25 per hour since 2009. 4 2. O VERTIME C OMPENSATION The Act requires employers to pay overtime compensation, at not less than 1½ times the hourly regular rate of pay for all hours worked beyond a specified number (usually forty hours in a seven day workweek). 5 3. R ECORDKEEPING AND P OSTING The FLSA requires every employer to make, keep and preserve employment records of the hours and other conditions and practices of employment. 6 In addition to recordkeeping requirements, the FLSA requires employers to post notices pertaining to the minimum wage and overtime provisions of the Act in a conspicuous place. 7 4. C HILD L ABOR With certain exceptions, 8 the Act prohibits the employment of children under the age of 14. Employment of children between the ages of 14 and 16, and 16 to 18, is subject to Department of Labor (“DOL”) regulations. 9 Employers must maintain certification of age in order to avoid liability for employing minors. 10

5. N O R ETALIATION

As with many federal labor and employment laws, the Act prohibits retaliation against an employee who asserts a claim under the FLSA. 11

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6. E QUAL P AY

Pursuant to the Equal Pay Act, which amends the FLSA, employers must pay employees equally for the same work, regardless of sex/gender. 12

B. W HAT THE FLSA D OES N OT R EQUIRE

Although the FLSA does not provide for the following, employers may still be required to comply with them through local laws or contract/labor agreement provisions.

1. S TATE W AGE AND H OUR L AW In California, there are seventeen overtime wage orders and one minimum wage order that govern wage and hour law for employers in the state. 13 Additional wage and hour laws are set forth in the California Labor Code. California public agencies must comply with the state minimum wage. 14 The state minimum wage for employers with twenty-six or more employees is $13.00 per hour until January 1, 2021, when it increases to $14.00 per hour. 15 For employers with twenty-five or fewer employees, the state minimum wages is $12.00 per hour until January 1, 2021, when it increases to $13.00 per hour. 16 Other than the state minimum wage, much of California’s wage and hour laws do not apply to local government entities. 17 However, this area of the law is unsettled and evolving. 18 2. O VERTIME FOR H OURS W ORKED O VER E IGHT IN A D AY With certain limited exceptions, the FLSA does not require overtime to be paid for hours worked over eight in a day. Rather, FLSA overtime is required only when the work actually performed exceeds a certain number of hours in a work period (usually forty hours in a seven day workweek). 3. M EAL AND B REAK P ERIODS The Act does not impose any requirements to provide meal or break periods. However, the Act does require that meal time be counted as “hours worked” for purposes of computing FLSA overtime if an employer places significant restrictions on an employee’s meal period. In addition, rest break times of twenty-minutes or less are generally considered work time. 19 4. S TANDBY OR O N -C ALL P AY The Act does not require employers to pay “extra” compensation for standby or on-call pay. When the employer overly restricts employee activities during standby or on-call time, however, the time may be considered hours worked and then must be paid at or above the minimum wage or hourly rate.

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5. P REMIUM AND S EVERANCE P AYS The FLSA does not require employers to pay premiums for certain types of work, or for work performed during certain hours or on Saturdays, Sundays and holidays. Likewise, the Act imposes no requirement to pay a severance upon termination of employment. 6. L IMITATIONS ON H OURS OF W ORK The Act does not limit the number of hours that employees aged sixteen and over may work per day or per week. However, employers must pay overtime to non-exempt employees for all hours actually worked beyond the maximum hours in a work period (usually forty in a seven day work period). C. R EMEDIES AND E NFORCEMENT The Secretary of Labor is empowered to initiate litigation against any employer to achieve compliance with the Act. 20 More commonly, however, private litigation is initiated by an individual or group of employees – sometimes with the help of the employees’ union. Private litigation may be commenced in state or federal court. 1. S TATUTE OF L IMITATIONS The statute of limitations for FLSA recovery is two years, but may extend to three years upon a finding that an employer’s violation was “willful.” 21 A willful violation is shown when an employer knew or showed reckless disregard as to whether its conduct was prohibited by the Act. 22 Courts have interpreted this to mean that “[a]n employer’s violation of the FLSA is ‘willful’ when it is ‘on notice of its FLSA requirements, yet takes no affirmative action to assure compliance with them.’” 23 a. Backpay Typically, employees will assert that they are owed backpay for unpaid minimum wages or overtime under the Act. b. Liquidated Damages The Act provides for “liquidated damages” if the employee establishes a violation. The amount of liquidated damages is usually equal to the amount of backpay owed. 24 Liquidated damages are mandatory, unless an employer can prove that it acted in “good faith.” 25 The good faith defense incorporates both a subjective and objective element. The employer must establish that it had an honest intention to ascertain and follow the requirements of the FLSA (the subjective element) and that it had reasonable grounds for believing its conduct complied with the Act (the 2. R EMEDIES The Act sets forth a wide range of penalties and remedies for violations, including:

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objective element). 26 If a good faith defense is established, the court has discretion to reduce or eliminate an award of liquidated damages.

c. Emotional Distress Damages Aggrieved employees may recover mental and emotional distress damages for a violation of the FLSA’s anti-retaliation provision. 27 d. Civil Monetary Penalties The Act gives the Secretary of Labor the discretion to assess civil money penalties in an amount up to $1,100 for repeated or willful violations of the Act’s minimum wage and overtime provisions. 28 e. Attorneys’ Fees and Costs Prevailing plaintiffs in FLSA cases are entitled to recover reasonable attorneys’ fees and court costs from their employers. 29 3. C RIMINAL P ENALTIES Willful violations of the Act may be criminally prosecuted. Convictions carry a penalty of up to $10,000 for the first offense. For repeat offenses, imprisonment for up to six months may be imposed.30

W HO IS C OVERED BY THE FLSA? ( OR M ORE I MPORTANTLY , W HO IS N OT C OVERED ?)

S ECTION 2

A. I NTRODUCTION TO C OVERAGE I SSUES In evaluating FLSA compliance issues, employers should first determine whether the FLSA covers the individual or class of individuals in question (i.e., whether the individual is considered a covered employee under the Act). While most workers are covered employees, certain classes of individuals who perform services for employers are not considered employees. For example, volunteers and independent contractors are not covered by the Act. Persons not covered by the FLSA should be distinguished from those who are exempt from its overtime provisions. Exempt employees are covered by the FLSA in the sense that employers may have to pay certain minimum salaries, maintain records and otherwise comply with FLSA regulations. On the other hand, employers have no FLSA obligations with respect to persons who are not covered.

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B. L IMITED E XCLUSION FOR E LECTED O FFICIALS , T HEIR S TAFF AND C ERTAIN E MPLOYEES OF L EGISLATIVE B ODIES Congress has specifically excluded elected officials and certain of their staff from FLSA coverage. The FLSA expressly excludes the following five classes of employees:



Elected Officials;



Personal Staff of Elected Officials;

 Policymaking Appointees of Elected Officials;

 Advisors on Constitutional or Legal Powers; and

Staff of the Legislative Branch. 31



C. I NDEPENDENT C ONTRACTORS

Independent contractors who perform services for an agency, and who are not employees, are not covered by the FLSA and thus need not be paid according to the FLSA’s requirements. However, many employers mistakenly classify individuals as contractors when they are actually employees under the FLSA. If a contractor does not meet the criteria for “independent contractor” status, the person or entity must be treated as an employee for FLSA purposes. There is no single rule or test applied to determine whether an individual is considered a bona fide independent contractor under the FLSA. Instead, the courts and the DOL have adopted multi-factor tests to evaluate a worker’s independent contractor status. Some of those factors are:

 The nature and degree of control by the principal;

 The opportunities for profit and loss;

 The amount of individual investment in facilities and equipment;

 Whether the service rendered requires special skill;

 The permanency of the relationship; and

 The extent to which the services rendered are an integral part of the principal’s business.

Arguably, the most important factor is the right to control the manner and means of work at issue. Independent contractors customarily are engaged in an independent business, and they – not with whom they contract – retain the right to control the way the work is performed. Thus, in an independent contractor relationship, the employer is usually concerned with the finished product, or the final outcome, of a particular job. On the other hand, in an employer/employee relationship, the employer generally has a common law right to direct all facets of the manner of work.

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D. T RAINEES Trainees are excluded from FLSA coverage. Whereas employees perform work for the benefit of their employer, trainees receive training primarily for the benefit of themselves in that the training enables trainees to become employees. 32 To evaluate whether an individual is performing as a trainee versus employee, Courts have developed seven non-exhaustive factors to examine the economic reality of the training relationship:

 The trainee and employer must mutually understand that there is no expectation of compensation;  The training provided must be similar to that provided in an educational environment, including vocational or clinical training environments;  Whether the training is tied to a formal education program via integrated coursework or academic credit;

 Whether the training corresponds with the trainee’s academic calendar;

 Whether the duration of the training is limited to the training period;

 Whether the trainee displaces paid employees or complements the work of paid employees while beneficial training is received;  The trainee is not necessarily entitled to a job at the completion of the training period (this is a critical factor). 33

If, using the above factors, the totality of circumstances indicates that the relationship between the trainee and the employer is primarily for the benefit of the trainee, the trainee has been properly designated as such and is excluded from the FLSA.

While wages may not be paid to trainees, nominal expenses are permissible as long as they do not exceed a reasonable approximation of the expenses incurred by the trainees. 34

E. V OLUNTEERS The FLSA expressly excludes volunteers from the definition of employees covered by the Act. 35 A “volunteer” is defined as an individual who performs service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation. 36 The two key requirements for volunteer status are: (1) the volunteer must not be compensated; and (2) the volunteer must not be employed to perform similar services for the same public agency. The Act permits entities to pay volunteers their expenses, reasonable benefits, and a nominal fee. 37

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F. U NPAID I NTERNS There is no category of “intern” set forth in the FLSA or its implementing regulations. As such, unpaid interns must satisfy the criteria of volunteer or trainee. To evaluate whether unpaid interns qualify as trainees, Courts have applied the multi-factor “primary beneficiary” test discussed above. 38 Whether an intern is an employee under the FLSA necessarily depends on the unique circumstances of each case.

H OURS W ORKED

S ECTION 3

A. I NTRODUCTION Under the FLSA, overtime compensation must be paid for all hours actually worked over a maximum amount in a work period (usually 40 hours in a seven-day FLSA workweek). Thus, it is critical to determine which hours are considered hours worked under the Act, and which hours do not count toward the calculation of overtime in a work week. Generally, “[w]ork not requested but suffered or permitted is work time.” 39 Thus, under the Act, if an employer allows an employee to work, such time will be considered “hours worked,” even if the employer is not specifically aware of the work being performed, and even if the work is carried out before or after normal working hours. B. D ISTINCTION B ETWEEN W ORK T IME AND P AID T IME Under the FLSA, paid time does not equal working time, or hours worked. Merely because an employee is in paid status does not mean that the paid status time must be counted as hours worked. In general, the FLSA only requires payment based on hours actually, physically worked by employees. 40 For example, if an employee is scheduled to work five days in a workweek, works the first four days and takes vacation leave on the fifth day, the employee will have only worked 32 hours under the FLSA. That employee would still need to work eight additional hours in the FLSA workweek before FLSA overtime could be earned. C. E MPLOYEES C ANNOT V OLUNTEER W ORK T IME Work that employers allow employees to perform will count toward hours worked, even if the employer is unaware of the work results, and even if the employee cheerfully performs the work on a volunteer basis. Thus, the regulations provide:

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Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe he is continuing to work and the time is working time. 41

D. R OUNDING AND D E M INIMIS R ULES

Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded. 42 Additionally, employers may round time worked to the nearest five minutes, six minutes, or 15 minutes, 43 provided that rounding policies are “neutral” and allow time gained and lost to even out over time. 44

To determine whether working time should be considered de minimis , and therefore not compensable, employers must consider:

 The practical and administrative difficulty of recording the additional time;

 The size of the claim in the aggregate; and

 Whether the work was performed on a regular basis. 45

Employers must be wary of employees working any time past their regular work day. Up to seven or eight minutes of additional work may be de minimis , and therefore not compensable, if the additional work is sporadic and there is administrative difficultly in recording the time. However, any increment of additional time that is worked on a regular basis may be compensable. E. E MPLOYEES W ORKING IN T WO OR M ORE A GENCY J OBS Public entities often are comprised of departments, each with relative autonomy. Public employers should recognize that the hours worked by an employee who works full time in one department, and moonlights or works part time in another department, usually will be considered to have worked the combined number of full time and part time hours when calculating hours worked for the entity. A significant exception to this general rule applicable to public entities is the exception for “occasional or sporadic” work “in a different capacity:”

[W]here State or local government employees, solely at their option, work occasionally or sporadically on a part-time basis for the same public agency in a different capacity from their regular employment, the hours worked in the different jobs shall not be combined for the purpose of determining overtime liability under the Act. 46

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F. M EAL B REAKS Generally, time spent eating a meal is non-compensable if the time spent is a “bona fide” meal break. DOL regulations state that an employee must be completely relieved from duty during their meal break for the break to be “bona fide.” 47 Most courts, however, have applied a more liberal “predominant benefit” standard to determine whether the meal break is compensable under the FLSA. 48 Under that standard, if a meal break predominantly benefits the employee, not the employer, the time is not compensable hours worked under the FLSA. It is not necessary that an employee be permitted to leave the premises if the employee is otherwise completely freed from duties during the meal break. However, employers should ensure that employees who take meals at their workstations are not working during an unpaid meal break, which would convert the time to compensable work hours. Employees who are required to eat at their desks or work stations will likely be considered to be working. G. R EST B REAKS The FLSA does not require employers to allow employees to take rest breaks. However, DOL regulations recognize that it is common practice to allow them. 49 Significantly, the regulations provide that rest periods of up to twenty minutes long must be counted toward hours worked. The regulations state:

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. 50

Employers should note that it is immaterial with respect to the compensability of rest periods whether the employee drinks coffee, smokes, goes to the restroom, etc. 51

H. B REAKS FOR N URSING M OTHERS The FLSA requires that employers provide employees with reasonable break time to express breast milk for a nursing child for one year after the child’s birth. 52 Employers are not required to compensate employees for nursing break time. 53 Employers with less than fifty employees need not provide nursing breaks if it would impose undue hardship. 54

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I. S LEEP T IME The DOL interpretative bulletin concerning sleep time is based on three different scenarios: (1) sleep time during a duty of less than 24 hours; (2) sleep time during a duty of 24 hours or more; and (3) sleep time when an employee resides on the employer's premises or works at home. Employees who are required to be on duty for less than 24 hours are considered working even if they are permitted to sleep or engage in other personal activities when not busy. 55 A telephone operator, for example, who is required to be on duty for specified hours, is working even though he is permitted to sleep when not busy answering calls. 56 When an employee is required to be on duty for 24 hours or more, the regulations allow the employer to agree with the employee or employee organization to exclude from hours worked bona fide, regularly-scheduled sleeping periods of not more than 8 hours. 57 When otherwise unpaid sleep time is interrupted by a call to duty, the time of the interruption must be counted towards hours worked. 58 When the interruptions prevent a reasonable night's sleep, the entire period must be counted as hours worked. 59 The DOL interpretative bulletin provides that when an employee does not get at least five hours of sleep, the entire period will be considered hours worked. 60 J. O N -C ALL OR S TANDBY T IME It is critical to determine whether on-call or standby time is considered hours actually worked under the Act. The significant issue is whether the time is sufficiently restricted so as to convert it to hours worked that must be counted toward overtime requirements. Although there is no bright line test to determine when an employee’s time becomes sufficiently restricted so that it converts to work time, the Ninth Circuit has provided a non-exhaustive list of factors to be analyzed when determining the degree to which an employee is free to engage in personal activities while on-call. The following factors should be considered:

 whether there was an on premises living requirement;

 whether there were excessive geographical restrictions on the employee’s movement;

 whether the frequency of calls was unduly restrictive;

 whether a fixed time limit for response was unduly restrictive;

 whether the on-call employee could easily trade on-call responsibilities;

 whether use of a pager could ease restrictions; and

 whether the employee had actually engaged in personal activities during call in time. 61

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K. P RE - AND P OST -S HIFT A CTIVITIES Time spent on activities that are considered preliminary and postliminary to an employee’s actual workday are specifically excluded from the definition of “hours worked” under the FLSA and are thus non-compensable. For example, time spent waiting for a paycheck after a shift is usually considered postliminary and is not counted toward hours worked. 62 The key criterion in determining whether the activity at issue is compensable hours worked is whether the activity is “integral and indispensable to the principal activities that an employee is employed to perform.” 63 If the activity is an integral and indispensable part of an employee’s principal activity, it is considered hours worked and compensable. Examples of work considered to be compensable preliminary or postliminary activity (and therefore compensable) include:

 Oiling, greasing or cleaning a machine in connection with the operation of the machinery;  Coming in early to work to distribute materials to other employees to prepare for the workday; 64

 Attending mandatory pre-shift meetings or briefings; 65

 Changing clothes and showering when the work requires it - e.g., because of extensive use of caustic materials on the job; 66

 Sharpening knives prior to working in a meat packing plant; 67



Filling out paper work;



Picking up trash; or

Re-fueling vehicles. 68



The U.S. Supreme Court has held that time spent by warehouse employees waiting for and undergoing mandatory security screenings before leaving the workplace was not compensable under the FLSA because the screenings were not “integral and indispensable” to the duties the employees were hired to perform, i.e. retrieving products from warehouse shelves or packaging them for shipment. 69 The Ninth Circuit has held that time firefighters spent moving their gear from their assigned fire station to a volunteer assignment at a different fire station was not compensable because the gear moving time was based on the firefighters’ desire not to take their gear home, which was not integral and indispensable to their primary work duties. 70 L. D ONNING AND D OFFING Donning and doffing means changing into and out of uniforms and protective or other gear before the start and after the end of a work day. In general, simply changing into and out of a standard uniform is not compensable work. But if the employee must don and doff significant protective gear or other items on the employer’s premises in order to perform his or her job, and if the process takes more than a matter of seconds or minutes, then the employee may be entitled to compensation for the donning and doffing activities. 71 An employer may negotiate a

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collective bargaining agreement with its employees which excludes time spent changing clothes on its premises from work time. However, the Ninth Circuit has held that an employer may not negotiate an exclusion for time spent donning and doffing protective gear on the employer’s premises. 72 For example, the donning and doffing of unique protective gear in a meat processing plant was found to be compensable when the gear consisted of, among other things, plexiglass armguards, metal-mesh leggings, and sanitary chain-link aprons; if the items were required both by applicable regulations and company rule; if the items were necessary for worker safety; and if they had to be donned and doffed at the plant itself. 73 However, police officers who have the option and ability to don and doff clothing and related protective gear at home, are not entitled to compensation for donning and doffing of that gear. 74 M. T RAVEL T IME The compensability of travel time under the law depends on a number of factors. In addition, agencies should review any local rules, memoranda of understanding, policies, procedures or practices regarding travel time that may apply. Bargaining agreements and past practice can affect the compensability of travel time. 75 General rules regarding travel time are summarized below. 1. T RAVEL TO AND FROM W ORK Ordinary travel to and from work is generally not hours worked, unless there is an employment agreement or custom or practice to pay under the circumstances. 76 This is true whether the employee works at different job sites, or at a fixed location. Thus, normal travel (e.g., the commute) from home to work is not work time. 77 Moreover, ordinary commute time is not converted to work time merely because the employer supplies the vehicle. 2. T RAVEL D URING THE W ORKDAY The general rule regarding travel during the workday is as follows: “Time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked.” 78 When an employee is required to report someplace before work (e.g., to pick up work materials or to perform other work), the travel from the designated place to the workplace is compensable work time. 79 In general, if an employee is required to travel away from the worksite to another location for a period that extends beyond normal working hours, the compensable amount of time depends on whether the employee is required to return back to work, or whether the employee travels home from the other location. If the employee is required to return to work, the entire period (the travel to the other location, the work performed there, and the return time back to work) is compensable. If the employee goes home after performing work at the other location, then the compensable period stops after work is completed at the other location, and the time spent returning home is not compensable. 80

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3. O VERNIGHT T RAVEL U NDER THE FLSA Travel away from home is work time when it occurs during the employee’s workday. 81 Thus travel away from home that occurs during the employee’s regular work day and normal work hours is compensable. Further, travel on days an employee is not normally scheduled to work but during his or her normal work hours is also counted as hours worked. 82 However, regularly- scheduled unpaid meal break time is not counted as hours worked when traveling. 83 The DOL does not consider as work time any time spent in travel away from home outside of regular working hours, when the employee is a passenger on an airplane, train, boat, bus or automobile. 84 When the employee is offered public transportation, but requests permission to use his or her private car instead, employers may count as hours worked the lesser of either (1) the time spent driving the car or (2) the time it would have taken during working hours if the employee had used public transportation. 85 Of course, when an employee works while traveling, such time is counted toward hours worked regardless of whether the employee traveled by public transportation or automobile. 86 Also, other than bona fide meal or sleep periods, an employee who drives a truck, bus, automobile, boat or airplane for a living is considered working while riding. 87 4. O VERNIGHT T RAVEL U NDER C ALIFORNIA LAW Pursuant to California law, if travel involves an overnight stay, or is part of an out-of-town one- day assignment, any time the employee spends traveling to and from the training, no matter the time of day, constitutes compensable hours worked. This includes time spent traveling as a passenger. 88 Furthermore, depending on the level of the employer’s control over how an employee spends his or her time while travelling for work, all time spent during overnight travel for work may be compensable, even time spent taking a meal break, sleeping, or engaging in purely personal pursuits. 89

LCW Practice Advisor

Generally speaking, public agencies that are not charter cities or counties must follow California law on overnight travel time. To date, courts have not construed California law on travel time to apply to charter cities or counties. However, a recent appellate court decision, Marquez v. City of Long Beach , which held that California minimum wage applies to a charter city, may indicate that all public agencies – including charter cities and counties – need to follow California law on overnight travel time. 90

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N. T RAINING T IME

1. G ENERAL R ULE

Training time, including time spent at lectures, meetings, and similar activities, is not compensable working time if all of the following four criteria are met:

 Attendance must be outside of the employee’s regular working hours;



Attendance must be voluntary;

 The training program must not be directly related to the employee's job; and

 The employee must not perform any productive work during the training. 91

2. D EFINITION OF V OLUNTARY A TTENDANCE If an employee is given to understand or led to believe that his or her present working conditions, or the continuance of employment, would be adversely affected by not attending the training program, then the attendance is not voluntary. 92 3. D EFINITION OF T RAINING D IRECTLY R ELATED TO E MPLOYEE ’ S J OB Under the regulations, training is directly related to an employee's job if it is designed to make the employee handle his job more effectively, as distinguished from training him for another job, or for a new or additional skill. 93 Thus, when a training program is designed to prepare an employee for advancement to a higher skill, and is not intended to make the employee more efficient in the current job, then the training will not be considered directly related to the employee’s job. This remains true even if the employee incidentally improves his or her skill doing regular work as a result of the training. 4. E XCEPTIONS Specialized training that occurs outside of normal working hours and is required by the law of a higher governmental agency for certification is not compensable, even if the employer pays for the cost of the training course. 94

When an employee on his or her own initiative spends time at an independent school or college after hours, the time is not considered hours worked even if the courses are related to his job. 95

Voluntary time spent by employees at a program of instruction that corresponds to courses offered by independent bona fide institutions of learning, outside of normal working hours, need not be counted as hours worked even if they are directly related to the job, or paid for by the employer. 96

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