Webinar presenter Rick Hodsdon of the Minnesota Sheriffs Association and Washington County Attorneys Office answered a number of your questions after his presentation, "Fair Labor Standards Act for Justice Professionals." Here are a few of his responses.
Audience Question: Can an exempt employee be required to work an 80-hours, two-week pay period and not get paid for less than 80 hours work?
Rick Hodsdon: I'm going to be operating on the assumption here that we're dealing with the public sector. Generally, if you are an exempt employee and your work week is a 40-hour week and 80 hours in a 2-week period, we look at it week by week. If you get paid $2000 a week and you're expected to work a 40-hour week, but if you truly are exempt and docked for not working that 40-hour week the employer is running the risk of turning you into a non-exempt employee. You are supposed to be paid that $2000 if your worked 30 hours or 50 hours. You should still be getting that same $2000.
Audience Question: Is there anything at FLSA that indicates a preference for comp time over flex time? Is there a time limit in which comp or flex time needs to be used?
Rick Hodsdon: Flex time is a term that really isn't addressed in the FLSA itself. Some states address that through their own mini version of the FLSA. There are one or two states that I'm aware of that have a state law that says if you work more than 8 hours in a day, then that additional time is compensated but as far as the FLSA goes, they're using for compensation purposes at least a 40-hour work week. If you normally work 8 hours, 5 days a week but instead you work 10 hours, 4 days a week, FLSA isn't going to care about that. If you start flexing time into other weeks, however, that's potentially a problem, if you are not an exempt employee. As far as the bosses are concerned, they're going to let you take work on a Saturday during the same pay period and then give you the Monday the following week off, they would be perfectly fine with that but when you work that extra 8 hours on that Saturday and the Monday is treated as a different work week, you would be entitled to overtime for that Saturday work and you'd get a short check for not working on Monday if you are not exempt.
Audience Question: You used the term bona fide volunteers, can you explain the difference between that and just volunteers?
Rick Hodsdon: It has to be real. In public sector, the biggest distinction I see at least where I grew up out here in the country is we have all sorts of agencies, hundreds of cities that say they have a volunteer fire department. So, they call them a volunteer fire department, but they're not bona fide volunteers because they're paid on call. That may be the easiest distinction. Bona fide volunteers are the parents who work at their kids' school. The person who works for a government entity comes into the jail and does training and education for the inmates who are not being compensated. If they're receiving economic compensation like the firefighters, then they're not truly a volunteer for FLSA purposes.
Audience Question: Is there any precedent for compensating employees required to remain on call outside of the regular work schedule on a week-on, week-off basis?
Rick Hodsdon: There's case law that does talk about that and it's varied over time. Technology has impacted in so many ways and one of the areas that I find interesting is the significant impact in reducing the chances that an employee who is on-call can claim compensation for the on-call time. It's really about how restrictive the off-duty activities are on your on-call off-duty activities as to whether they're compensable or not. There is a classic case involving emergency medical personnel off the Carolina coast. They were on call and were told they were not going to be compensated. They filed a lawsuit and prevailed. The reason is the only way to get to and off the island was a 45-minute and hour ferry ride. Since their response time for being on call was significantly less than that, their argument that was successful in the federal court of appeals is, "We're effectively confined to this island, people who live here do their shopping, social visits, everything else – you don't do on the island. By effectively making us not able to leave, you put such restrictions on our freedom of movement that's compensable time."
Nowadays, with modern technology, if you have the flexibility of movement and activities, you can go to your kids' soccer game knowing that you have to drive separate so if you're called out, you're going to have to leave the game for a call-out. Not likely under the FLSA that that's going to found as compensable at this point. It really is about your freedom of movement, freedom of restrictions. I had a cop who said, "But I can't drink on call," well FLSA doesn't care if you can have a beer or not.
Audience Question: Our dispatch center is a consolidated 911 dispatch center and we are considered a not-for-profit 501 C3. Given this status, would our 911 dispatchers fall under the public sector FSLA rules because they dispatch police and fire units for agencies who are public sector employees or would they still fall under the not-for-profit 501 C3 rules?
Rick Hodsdon: Based on the description, if they're a completely separate and distinct legal entity, even if you're not for profit, you're still going to have to file an IRS tax return. If that entity is filing a not-for-profit tax return and the paychecks are coming from that entity and the hiring process is not involved in the municipalities that are a part of the process, if it truly is a separate and distinct legal entity, I think analytically at court, we look at that just like if you're a private security firm that provides private security to the courthouse. You're at the courthouse, you work with the sheriff's office but you're a separate legal entity, you're considered a private entity rather than a public entity.
Audience Question: For civilian unionized employees, can employers restrict when comp time can be used?
Rick Hodsdon: Employers can restrict for civilian or for law enforcement, but again, it's going to be the same criteria. Somebody says I want to take half a day, a day comp time and they have it on the books, and the employer's going to say no, if they're challenged on it, they need to be able to explain in court or the Department of Labor investigators why that would've been unduly disruptive to office operations to grant that comp time.
Audience Question: The next person says, "I am employed by a Kenny agency and considered exempt by my department. I am salaried but I cannot earn comp time. Does this make me non-exempt implying I'm not truly salaried?"
Rick Hodsdon: Probably not. As I said, it's an example of if you did not have that benefit and you start to look around. A lot of supervisors tend to work in a given week more than 40 hours. If there isn't some kind of economic recognition for that, why bother? Why would I want that promotion? What happens is the employer, as a matter of economic reality will say, "'We are not legally obligated to do this, but to give you an incentive to get promoted to be a manager, to do your job, this is what we will agree to.” The bigger risk would be if you worked 38 hours instead of 40 and they start deducting your pay, now it is much more likely that they're going to turn you into a non-exempt.
Audience Question: Can you limit the amount of compensation time an employee can accrue?
Rick Hodsdon: Not only that you can, but by law, you have to. There are statutory caps as to how much comp time that a covered FLSA employee can accrue. Under law enforcement, the cap is 240 hours. It's higher for law enforcement than any public sector job classification. Anything that meets the statutory max at that point, all compensation must be done in cash.
Audience Question: If one department within a local agency pays stand-by pay for on-call, does another department in that same agency also have to pay standby call? Can there be different practices within the same agency on whether or not standby call is compensated?
Rick Hodsdon: I certainly think there could be simply because the question's going to be what does that mean. For unit A, stand-by might means, "when we call you out, get here in a couple of hours." Where for the other, standby means, "your call-out time means you have to be prepared to report to the agency within 15 minutes." That time distinction alone could be enough to make one compensable time and the other not. The other question is, what's the history of enforcement? If people had been disciplined for not responding to callback time, under the case law that means a higher probability that the court is going to find that it is, in fact, compensable time. If nobody ever gets disciplined, "We want you to get in here, but if you don't, oh well, we'll call the next person on the list," there are no negative consequences, no sanctions, no discipline, no monetary loss, that is going to significantly reduce that wait or call-in time for being compensable.
Click Here to Watch a Recording of "Fair Labor Standards Act for Justice Professionals."