K & F

1. K&F KISSINGER & FELLMAN, P.C. Tips on the Wage Scale: Recent Developments in the FLSA IMLA Personnel Teleconference May 23, 2012 Nancy C. Rodgers, Esq. Kissinger & Fellman, P.C. 3773 Cherry Creek North Drive, Suite 900 Denver, CO 80209 Phone: 303.320.6100 Fax: 303.327.8601 www.kandf.comnancy@kandf.com Twitter: @rodgdog72

2. Suffered or Permitted to Work. . .For Pay “If I had 8 hours to cut a tree, I’d spend 6 sharpening my ax.” Abraham Lincoln • FLSA: Employees must be paid minimum wage for all “hours worked.” • Employment defined: • All time an employee is “suffered” or “permitted” to work. • All time an employee is “required” to be at work or on duty. • Overtime pay is due if the hours worked is more than 40 hours in one week. SO WHAT IS INCLUDED IN “HOURS OF WORK?”

3. More than 9-5: Hours of Work HOURS OF WORK INCLUDES: • Regular work time • Unauthorized work time • Pre and post work “principal” activities for the employer’s benefit • e.g.: Cleaning and maintaining vehicles; opening/closing office; getting assignments • On-call time* • Call in requirements / reporting time • Time on smartphones and cell phones* • Remote computer access time*

4. More than 9-5: Hours of Work HOURS OF WORK INCLUDES: • Break periods • May include break time for nursing mothers • Meal periods less than 30 minutes • 30 mins or longer can be unpaid, but employee must not be working • Training and meetings* • Travel time* • De Minimis Rule • Insignificant or insubstantial periods of time not included in hours or work • Must be uncertain and indefinite • Must be minor or trivial (seconds, few minutes)

5. Putting It On / Taking It Off “Common sense is genius dressed in its working clothes.” Ralph Waldo Emerson • Time spent “changing clothes” is not compensable under the FLSA, Sec. 203(o). • Includes uniforms (unless addressed by CBA) • What about Protective Gear? • U.S. Supreme Court: Donning and doffing of protective gear is compensable as “an integral and indispensable” part of the workday. • IBP v. Alvarez (2005) • Where is the line for “integral and indispensable?” • Majority of federal circuits find the donning and doffing of protective gear is notcompensable. • Issues: unique gear, cumbersome, personal equipment • DOL’sAdministrator's Interpretation No. 2010-2 • Donning and doffing of “protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job” is compensable.

6. On-Call Time “I must govern the clock, not be governed by it.” Golda Meir • Time responding to call is compensable • Time “on-call” may not be: • Depends on the employer’s control over the employee’s activities “on-call” • Geographic restrictions • Restrictions on personal activities • Frequency of calls • Time limit to respond • Ability to trade or swap on-call duties • Heavy restrictions = pay for on-call time • The requirements and restrictions are so onerous they prevent employee from using their time effectively for personal purposes. • Very fact specific

7. On the iPhone = In the Wallet “Men have become the tools of their tools.” Henry David Thoreau • Increased connectivity = overtime issues • For hourly, non-exempt employees • Off-duty emails, phone calls, and text messages can be compensable time. • Time must be more than “de minimis.” • No clear definition • Policies should establish off-hour use of: • Mobile devices / smartphones / PDAs • Both personal and employer-provided • Remote access computer systems • Pay for the time worked • But discipline for not following policies

8. “Sure, email or text me. I’ll have my phone with me” • Allen v. City of Chicago, N.D. Ill., May 2010 • Police officers seek pay for handling emails, phone calls and texts while offduty • City provided mobile devices and required officers to respond at all times (allegedly) • City lost Motion to Dismiss • Case still pending

9. ?Wht cn I do 2 s8f grd?* *What can I do to safeguard? • Only issue PDAs/Smartphones to those who really need them to do their jobs. • Typically exempt employees • Maybe some hourly employees • Cost/benefit: EE availability vs. tracking hours and paying OT • Establish similar restrictions for use of personal PDAs/Smartphones and computer home access. • Develop a policy that addresses off-duty use. • If you don’t want off-duty use, prohibit it. • Work with managers so workload/culture doesn’t require it • Include record keeping requirements. • Failure to record can be a disciplinary issue • Address all off-duty time. • Breaks, meal periods, and “home” time

10. Trainings and Meetings “It's all to do with the training: you can do a lot if you're properly trained.” Elizabeth II • Time at training and meetings must be paid unless: • Attendance is outside working hours; • Attendance is voluntary; • The training or meeting is not directly related to employee’s job; and • Directly related: designed to make employee handle job more effectively • The employee does not perform work.

11. Paid for Rush Hour Travel? Unlikely Everything is life is somewhere else and you get there in a car.” E.B. White • The Commute: Paid travel time doesn’t include home to work site. • Even if site changes. • No matter how long the commute. • Non-commute travel time is paid if: • it relates directly to work activities; and • follows the day’s first principal activity or precedes the last such activity. IBP v. Alvarez (2005) • Emergency Travel: • If employee is called and must travel a “substantial distance” for an emergency, travel time is paid. • Portal-to-Portal Act (29 U.S.C. § 254(a))

12. Seasonal Workers “I still consider it a summer job, though. So, I try to maintain that summer job as long as I can.” Jimmy Buffet • Generally employees who can earn overtime and comp time • But applicable FLSA exemption, 29 U.S.C. § 213(a)(3), for employees working for: • Amusement or recreation centers • Stadiums, golf courses, swimming pools, beaches / boardwalk facilities • Organized camps • Religious or non-profit educ. conf. centers • Establishment must not operate > 7 months in a year And since it’s summer time: • Unpaid interns? • Structured as an academic experience = OK • Really an hourly job in disguise = Not OK

13. A little extra information… Enforcement - U.S. Department of Labor • Wage and Hour Division • On-site investigations • Audits • Lawsuits • Statute of Limitations • 2 years; 3 years if “willful” • DOL Fact Sheets: • http://www.dol.gov/WHD/fact-sheets-index.htm

14. Enforcement and Remedies Employee Private Right of Action • Individual lawsuits • Collective (Class action) lawsuits • Class must be certified as “similarly situated” • Requires a very minimal showing • ‘Opt in’ vs. traditional ‘opt out’ class Consequences of DOL or court action • Compliance with the law • Back pay • Penalties

15. Recordkeeping • Employer must keep records of hours worked and personal information • Employer’s duty, not employee’s • Pay, but discipline an employee who does not record his/her time properly • Must keep a retention schedule • Payroll records: 3 years • Basic employment and earning records: 2 years

16. K&F KISSINGER & FELLMAN, P.C. Questions? Nancy C. Rodgers 303.320.6100 www.kandf.comnancy@kandf.com Twitter: @rodgdog72