FLSA Hot Topics: Donning and Doffing, Furloughs, Take Home Vehicles & Training

Transcription

1 FLSA Hot Topics: Donning and Doffing, Furloughs, Take Home Vehicles & Training WAPELRA Fall 2009 Sofia Mabee Bruce Schroeder

2 General Wage and Hour Rules Minimum wage FLSA $7.25 effective July 24, 2009 Washington State $8.55 Overtime for hours worked over 40 per workweek 7(k) exception

3 Definition of Work Physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer. Exertion not necessarily required Employer pre-approval not necessary - policies prohibiting overtime must be actively enforced

4 De Minimis Exception Insubstantial or insignificant periods of time which cannot as a practical administrative matter be precisely recorded for payroll purposes A few seconds or minutes Uncertain and indefinite 29 CFR

5 DONNING Definition of don: to put on an article of clothing 14 th century contraction of do on DOFFING Definition of doff : 1-to remove an article of wear from the body; 2-to take off the hat in greeting or in a sign of respect 14 th century from don and off

6 DONNING AND DOFFING: Portal-to-Portal Act Relieves employers from liability for time spent: Walking, riding, or traveling to and from the actual place of performance of the principal activity the employee is employed to perform Activities which are preliminary or postliminary to the principal activity 29 USC 254(a)

7 Changing Clothes and Washing Exception Changing clothes and washing at the beginning or end of the workday does not constitute hours worked if the time is excluded by the express terms of or by custom or practice under a bona fide collective bargaining agreement. 29 USC 203(o)

8 Integral and Indispensable Activities Preliminary and postliminary activities that are integral and indispensable to the principal activity remain compensable as principal activities themselves.

9 Alvarez v. IBP Inc. Donning and doffing all personal protective equipment (PPE) was integral and indispensable to the principal activity Changing clothes exception not applicable to PPE Unique = chain-link metal aprons, vests, pexiglass arm guards, special gloves Non-unique = hardhats, earplugs, safety glasses, boots, and hairnets Time spent donning and doffing non-unique equipment was de minimis

10 US Supreme Court Opinion IBP Inc. v. Alvarez Any activity that is integral and indispensable to the principal activity is itself a principal activity and compensable Continuous Workday Rule meant walking to and from assembly line was compensable Trial court awarded $7 million wages and $2.3 million attorneys fees and costs plus interest

11 UNITED STATES DEPARTMENT OF LABOR Unique v. Non-Unique gear is irrelevant Donning and Doffing is compensable when required to take place on the employer s premises by: Rules of the employer The law Nature of the work

12 NINTH CIRCUIT CASES SINCE ALVAREZ Martin v. City of Richmond A police uniform is not integral and indispensable to law enforcement work Police protective gear is integral and indispensable to law enforcement work Policy allowing donning and doffing gear at home must be meaningful not illusory

13 Abbe v. City of San Diego Uniform and protective gear was not integral and indispensable because it was not necessary that it be donned and doffed in the workplace Policy did not require changing at work Uniforms were required to be covered off-duty No evidence of harm or retaliatory acts Uniform fell within changing clothes exception Less than 10 minutes was de minimis

14 Lemmon v. City of San Leandro Location is only one factor Uniforms are also integral and indispensable Part of the continuum of force Minimize injuries Required by the Department Donning and Doffing uniforms and protective gear is compensable Changing clothes exception did not apply

15 Bamonte v. City of Mesa Rejected the Lemmon decision Uniforms and protective gear are integral and indispensable if officers are required to don and doff them in the workplace by: The law Department policy; or Nature of police work

16 Maciel v. City of Los Angeles Uniform was not integral and indispensable but protective gear (Sam Browne belt, Kevlar vest) was Officers were required to don and doff in the workplace Department provided lockers Department discouraged wearing uniforms off-duty Taking weapons home was a safety risk 5-10 minutes was not de minimis Plaintiff failed to prove he worked more than 171 hours in the work period

17 Dager v. City of Phoenix Reviewed 5 prior decisions Option and ability to don and doff at home precludes compensation Uniforms are not integral and indispensable Changing clothes exception only applies to typical clothing

18 Other Federal Circuits Helmet, safety glasses, and steel-toed shoes are not integral and indispensable to nuclear plant work Uniforms, smocks, and hair nets which were required to be donned and doffed in the workplace were indispensable Safety glasses and hearing protection were de minimis Work gloves, shirt, and shoes were not unique Smocks, hair nets, gloves, and hearing protection not compensable in chicken processing plant

19 Summary of Ninth Circuit Opinions Since Alvarez 2 courts held donning and doffing police uniforms is integral and indispensable to law enforcement work 5 courts held donning and doffing police protective gear is integral and indispensable All 6 held that requiring donning and doffing at the station is a factor in determining compensability (5 of the 6 held it is a critical factor) 1 court held the changing clothes exception excludes compensation for donning and doffing police uniforms 2 courts applied the de minimis rule - 1 said less than 10 minutes is de minimis, the other said 5-10 minutes is not de minimis

20 WASHINGTON MINIMUM WAGE ACT Employers must comply with the state or federal provision that benefits employees more Hours worked include donning and doffing if Integral and necessary to the performance of the job; and Employee does not have control over when and where the donning and doffing is performed

21 Lessons Learned Adopt a policy allowing employees to don and doff uniforms and gear at home Enforce the policy by encouraging employees to don and doff at home Consider ways to reduce the amount of time it takes to don and doff Consider whether some gear is optional

22 FURLOUGHS Salary Basis Test Predetermined amount not subject to reduction because of variations in quality or quantity of work Specific exemptions Must receive salary for any week in which the employee performs any work

23 Mandatory Furloughs Full Workweek No work can be performed (including ) Less than full workweek For budget-required furlough of public employees, do not lose exempt status except in the week in which the furlough occurs Alternative of allowing or requiring use of vacation

24 Voluntary Furloughs Must be completely voluntary and not occasioned by the employer or the operating requirements of the business

25 Reduction in Hours and Salary Short-term reduction problematic Long-term reduction OK if not designed to circumvent the salary basis requirement and meets the minimum wage Archuleta v. WalMart Periodic modifications OK as long as not a sham Modification twice annually not a sham

26 TAKE HOME VEHICLES

27 COMMUTING IN GENERAL Home to work is non-compensable Carrying lbs of documents Home to work assignments in general commute area is non-compensable Commuting to training academy Home to work assignments outside commute area or for special assignment is compensable

28 EMPLOYEE COMMUTING FLEXIBLITY ACT Need not treat hours commuting in take home vehicle as compensable if: Use of the vehicle is subject to an agreement between the employer and the employee or union Commuting is within normal commuting area

29 Rutti v. Lojack Corporation August 21, 2009 Commuting in take home vehicle is noncompensable even if it is required as a condition of employment Exception = additional legally cognizable work Pre-commute activities were not integral and indispensable to principal activity and de minimis 5-10 minutes uploading data was compensable

30 Other Federal Circuits Adams v. United States Law enforcement commute not compensable because any work other than driving is de minimis Bonilla v. Baker Concrete Construction Inc. Riding employer bus and airport screening not compensable

31 Washington Minimum Wage Act Home to work commute in employer-provided vehicle is non-compensable if no work during the commute (even in take home vehicle) Home to remote job sites in employer-provided vehicle may be compensable

32 Stevens v. Brink s Home Security Commuting in take home vehicle between home and remote job sites is compensable if: (1) Employee is on duty during the commute Personal activities significantly restricted

33 Stevens v. Brink s Home Security Commuting in take home vehicle between home and remote job sites is compensable if: (2) The vehicle qualifies as a prescribed workplace Carried necessary tools and equipment in the vehicle Required to complete paperwork in the vehicle or on site Required to keep the vehicle clean, organized, and serviced

34 On Duty Factors Whether the employee can make personal stops and engage in personal activities during the commute Whether the employee must respond to work calls en route and may be redirected Whether the employee must maintain contact with the employer Whether the employee receives assignments at home and spends time mapping the route

35 Prescribed Workplace Factors Whether the nature of the business requires driving a particular company vehicle to carry necessary nonpersonal tools and equipment to the work site Whether the take home vehicle serves as a location where the employer authorizes or requires the employee to complete business required paperwork or load materials or equipment Whether the employer requires the employee to ensure the vehicle is kept clean, organized, safe, and serviced

36 Commute Time Issues Standard commute is non-compensable Home to different work assignment in general commute area If direct from home outside normal work hours = non-compensable If required to report to base before traveling to different work assignment or during normal work hours = compensable

37 Travel Time Maze Travel during work hours Between job sites: compensable From remote job site to base: compensable Out of town travel: everything compensable except travel from home to airport, bus depot or train station Travel outside regular working hours If employee is driving: compensable If passenger in auto, bus, plane or train: noncompensable unless doing work Travel on non-work day: If during regular work hours: compensable If outside regular work hours: noncompensable unless employee is driving

38 Commuting and the Continuous Workday Rule Continuous Workday Rule Rutti and 29 CFR : Periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not hours worked.

39 Non-Commute Travel Time During regular work hours Generally all compensable Exception: travel to local airport, bus depot or train station Travel on non-work day Apply same regular work hours rules Travel outside regular work hours Generally not compensable Exceptions: employee is driver or employee is working while in vehicle

40 Mandatory Training If employer requires training = work time Exception: if training obligation is set by outside agency (e.g., periodic retraining to maintain paramedic certification)

41 Requirements to Exclude Voluntary Training From Hours Worked All of the following four requirements must be met: Attendance outside regular working hours Attendance voluntary Not directly related to employee s job; and Employees do not perform productive work during attendance

42 Non-compensable Training Off duty training that corresponds to training offered by independent bona fide institutions of learning Off-duty time spent training to meet state or federal requirements Off-duty training to meet the minimum qualifications or prepare for a new job

43 Training Examples Firearms training Voluntary training with tuition reimbursement and education incentive Homework or study time?

44 STAY TUNED