Today’s FLSA Question: I am a fire department training instructor. I help teach at the fire academy a few days per month. I recently instructed one of the recruits to spend some extra time working on ropes over a long weekend. The captain in charge of training informed me that I shouldn’t make those types of statements. In fact, he told me the recruit could submit a request for overtime for the extra time working on knots. That is why the department has instituted a “no-homework” policy for all recruits. In my mind this is ridiculous. Does the FLSA mandate pay for all the time a recruit spends studying or practicing skills while “off-duty” in the training academy?
Answer: This is a hot topic and certainly worthy of discussion. The state of California recently settled claims made by more than 2,000 former firefighter recruits over unpaid work hours while in the state’s Department of Forestry fire academy. The state ended up paying more than $4 million to settle their claims.
Your training captain is most likely correct. However, that does not mean all time spent performing these types of after-hours activities needs to be compensated. It also does not mean the fire department must institute a per se no-homework policy. In order to answer this type of question, we need to quickly examine the history and intent of the FLSA.
The FLSA was enacted to help protect workers and invigorate a devastated economy during the Great Depression. The notion of providing a basic minimum wage with overtime requirements was intended to reduce poverty and increase employment. One of the ways the drafters of the FLSA attempted to achieve this goal was by broadly defining what is considered work and what it means to be employed.
The FLSA requires employers compensate employees for all hours worked. This includes work that is performed away from the workplace. Employers are even responsible to pay employees for work the employer did not want performed! If the employer has reason to believe the work is being performed, it must be compensated. These are some of the bedrock principles of the FLSA. Pretty straightforward when you think about it. . .You work, you get paid.
But even with these seemingly burdensome FLSA compensability requirements that most employers must follow, there are options.
First, do not require recruits to perform work-related tasks or study while off-duty. Allow recruits a small amount of time daily to perform these types of activities. There is no requirement to compensate employees who voluntarily study or practice skills after hours in order to improve their knowledge or ability.
Second, if you feel it is absolutely necessary to assign work or require recruits to study while off-duty, limit the amount of time spent performing such activities. Department of Labor (DOL) regulations allow employers to reach reasonable agreements with employees regarding the compensability of work performed after-hours or away from the workplace. These regulations can be found at 29 CFR 785.23.
Finally, and possibly most important, you must educate fire department trainers, at all levels, regarding policies and procedures related to off-duty work and firefighter recruits. Well-intentioned academy trainers can inadvertently set the stage for wage and hour violations and eventual FLSA lawsuits.
One last point: Not all training must be compensated—there are a few exceptions to the general rule that all work-related training is compensable. Training time is one of many topics covered in depth at all our FLSA for Fire Departments seminars. Please consider joining us. BTW, register for the Atlanta / Covington class before November, 1 and save $100.