The Fair Labor Standards Act (FLSA) was originally implemented in 1938. Workplaces have changed drastically since that time. Many of the most common FLSA violations reflect that transition. As an employer, it is not always easy to stay ahead of the curve on some these issues, however it is essential that employers remain vigilant in efforts to stay compliant with the FLSA. This is the fourth of a five-part series outlining 5 very common FLSA violations and providing tips on how to stay out of the Courtroom.
- Employee Misclassification – Exempt vs. Non-Exempt (Part 1)
- Calculating Regular Rate Incorrectly (Remuneration) (Part 2)
- Failing to Keep Proper Records (Part 3)
- Failing to Pay Employees for all Hours Worked (Part 4)
- State Law Issues (Part 5)
Failing to Pay Employees for all Hours Worked (Part 4 of 5)
The FLSA was written in the 1930’s. The workplace has changed drastically in the last 80 plus years. Factories and stores are no longer the primary workplaces. The time clock and whistle no longer represent the work day. Today’s workplace often requires employees to be readily available at all hours, through telephone, internet, and even social media. There are at least two areas of concern for fire departments dealing with working off the clock:
- Failing to pay an employee that works through his or her unpaid lunch period.
- Failing to pay an employee for work performed while “off-duty”.
The FLSA requires employees to be paid for all time “suffer[ed] or permit[ed] to work”. That means even if the employer doesn’t require the work to be performed, they still must pay the worker for performing it. Even if the employer instructs the employee to not perform work, if the employee still performs work, they must be paid! Seems illogical to some, but that is the law. By the way, the same rules may apply whether the employee is at the workplace or at home…
Unpaid Lunch Breaks
One common problem occurs when an employee is either required or chooses to perform work during an unpaid lunch break. There could be a variety of reasons the employee works through his or her lunch break:
- The employee chooses to work through the break.
- The employee is required to work through the break.
- There is no one else available to answer the phone or questions.
Regardless of the reason, the result will be the same, the employee most likely needs to be paid for that time.
How does this relate to Fire Service?
Does your organization have civilian clerks or dispatchers? Are they completely relieved during lunch periods? Do they still at times field work related questions or answer the phone during their lunch? If you answered yes to those questions, there may be an FLSA violation.
The next area of concern is failure to pay for all hours worked remotely from home. Time spent answering work related emails, speaking on the telephone to superiors or co-workers regarding work related issues, or even updating employer social media pages. By now this should not be a surprise. Most likely, time spent by the employer performing these roles must be paid.
How does this relate to Fire Service?
Most fire departments operate 24 hours per day, 7 days per week. Firefighters and officers are only available one out of three days. It is not uncommon for a firefighter or officer to only be present in the station one or two weekdays per week. Throw in a vacation day, and they may not be in the station all week. This creates significant communication problems between staff and line personnel.
Are members of your organization responsible to answer work emails while off-duty? Do they have access to work-related scheduling or reporting software? Will an officer complete incident reports or check the status of apparatus and/or personnel while at home off-duty?
Even if not required, do fire officers and firefighters frequently respond to dept. emails while off-duty? Finally, is there a designated public information officer that is responsible for posting official fire dept. news, events, and or emergencies on social media?
If you answered yes to any of these questions, you may have an FLSA violation. Non-exempt personnel should be paid for all work the fire department either knows about or should have reasonably been aware of. Most computer software programs keep a unique record of the users access and activity. In addition, emails are time and date stamped as well as social media postings. It would be very difficult for a fire department administrator to deny any knowledge of a firefighter’s off-duty computer activity.
What’s the Solution?
There are some initial steps that a fire dept. administration can take to mitigate these concerns:
- Create policies that clearly indicate firefighters and officers are not required to respond to dept. emails, phone calls, etc., while off-duty.
- Create additional policies that requires the firefighters and officers request compensation for all time spent working while off-duty.
- Consider blocking access to dept. servers from outside computers.
- Assign the public information officer role to an exempt (No FLSA OT) higher level command chief or other officer.
Some of these solutions may work for your organization and some may not. It will be highly dependent upon individual facts and circumstances. It is important all employers begin to ask themselves these types of questions.