A federal judge has found in favor of a group of thirty Pemberton Township, New Jersey police officers and sergeants following their 2014 lawsuit over uncompensated pre-and-post shift work activities. The judge’s decision, which came after eight years of litigation and a 4-day bench [non-jury] trial found that Pemberton Township failed to pay the officers for time spent preparing their patrol cars, gathering required equipment, and other various activities prior to the official start of the officers’ work shift. As a result, the township has been ordered to pay the officers more than $50,000 in back wages and damages.
The FLSA requires employers pay overtime eligible employees for all hours worked. This includes time spent before and after assigned work shifts participating in pre-shift briefings, finishing paperwork at the end of a shift, and other shift-change type activities. Here, the township relied on an internal policy that prohibited officers from performing work before or after assigned work shifts without prior approval. Here is the language found in that policy:
- Employees are required to ‘clock in’ and ‘clock out’ at their scheduled times.
- As a convenience to employees, employees may clock in up to 7 minutes prior to the start of their scheduled work time. However, employees shall not engage in any work during that time. In such cases, the employee will not be compensated for the time on the clock until the start of the employee’s scheduled work time.
- Likewise, employees may clock out up to 7 minutes after the end of their scheduled work time. However, employees shall not engage in any work during the time after the end of their shift. In such cases, the employee will not be compensated for the time on the clock after the end of the employee’s scheduled work time.
- In both cases, an employee will be compensated for work performed before and after the employee’s scheduled work time only for actual work (and subject to the rounding policy). Actual work may only be performed if overtime has been expressly approved by the employee’s supervisor in accordance with overtime approval procedures.
Despite the above policy, the officers were able to show through testimony and other evidence that officers regularly performed work before their scheduled work shift began. Additionally, other officers and even senior police department staff testified that performing certain pre-shift activities was “cultural” within the organization and instilled in new officers by their training officers. In the end, despite the policy forbidding the pre-shift work, the officers prevailed.
While this lawsuit involved law enforcement officers, the same general principals can apply to any type of public safety organization. Whether the pre-shift work consists of preparing a patrol car, ambulance, or a dispatch console for an upcoming shift, employers must be prepared to deal with these types of wage and hour complaints. Publishing a blanket policy forbidding the work is often, as this case clearly illustrates, ineffective. Additionally, such a blanket policy could be used as evidence the employer was aware that uncompensated work was being performed. This awareness could even result in increased damages in the event an employee successfully sues for uncompensated off-the-clock work.
Do you have questions about proper compensation for pre-and-post shift activities and other off-the-clock work? Please consider joining us this Wednesday, April 6, 2022, for our new Advanced FLSA Live Webinar entitled: Managing Firefighters’ Hours in the 21st Century – Off-The-Clock Work.
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Here is a copy of the ruling.