1. 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.comwww.kandf.com nancy@kandf.comnancy@kandf.com Twitter: @rodgdog72@rodgdog72 Tips on the Wage Scale: Recent Developments in the FLSA IMLA Personnel Teleconference May 23, 2012

2. 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?” “If I had 8 hours to cut a tree, I’d spend 6 sharpening my ax.” Abraham Lincoln Suffered or Permitted to Work...For Pay

3. 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* HOURS OF WORK INCLUDES: More than 9-5: Hours of Work

4. 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) HOURS OF WORK INCLUDES: More than 9-5: Hours of Work

5. 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 not compensable. Issues: unique gear, cumbersome, personal equipment DOL’s Administrator's Interpretation No. 2010-2Administrator'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. “Common sense is genius dressed in its working clothes.” Ralph Waldo Emerson Putting It On / Taking It Off

6. 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 “I must govern the clock, not be governed by it.” Golda Meir On-Call Time

7. 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 “Men have become the tools of their tools.” Henry David Thoreau On the iPhone = In the Wallet

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

9. 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 *What can I do to safeguard? ?Wht cn I do 2 s8f grd?*

10. 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. “It's all to do with the training: you can do a lot if you're properly trained.” Elizabeth II Trainings and Meetings

11. 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)) Everything is life is somewhere else and you get there in a car.” E.B. White Paid for Rush Hour Travel? Unlikely

12. 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 “I still consider it a summer job, though. So, I try to maintain that summer job as long as I can.” Jimmy Buffet Seasonal Workers

13. 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 http://www.dol.gov/WHD/fact-sheets- index.htm A little extra information…

14. 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 Enforcement and Remedies

15. 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 Recordkeeping

16. Questions? Nancy C. Rodgers 303.320.6100 www.kandf.comwww.kandf.com nancy@kandf.comnancy@kandf.com Twitter: @rodgdog72@rodgdog72