Archive for February, 2014

You Need to Work on That. Training Time and “Hours Worked” under the FLSA

“Steve, I have a question:  I want to train my employees, do I have to pay them while they are sitting in training?”

Well now that depends.  Generally, you do have to pay employees for training, even if it is classroom training, but not always.  How’s that for a lawyer’s answer?  Don’t worry, I’m not going to leave you hanging, I’m going to explain – well, as much as I can given what I have to work with.

So what is the general rule?

Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met:

(a) Attendance is outside of the employee’s regular working hours;

(b) Attendance is in fact voluntary;

(c) The course, lecture, or meeting is not directly related to the employee’s job; and

(d) The employee does not perform any productive work during such attendance.

29 CFR § 785.27.

Now the first and the last prongs of this particular exception are pretty easy to figure out.  Either the employee is being trained during his normal working hours or he isn’t, and either he is working during the training or he is not.  I mean, if you make widgets and part of the training is making widgets you are doing productive work.  The second and third are a bit harder.  Well they wouldn’t be, but not everyone is as honest as you and me.  So when is training voluntary “in fact”?

Attendance is not voluntary, of course, if it is required by the employer. It is not voluntary in fact if the employee is given to understand or led to believe that his present working conditions or the continuance of his employment would be adversely affected by nonattendance.

29 CFR § 785.28.  Take the training or you lose your job is not voluntary training, now is it?  Take the training or you don’t get a raise isn’t either, is it?  Well not so fast.  In Price v. Tampa Electric Co., 806 F2d 1551 (11th Cir. 1987) cert denied 483 US 1006 (1987), the eleventh circuit held that a training course offered to meter readers in how to operate new equipment was voluntary where continued employment was not affected by failing to take the course but the employees would be denied a higher salary.  On the other hand, the DOL in an opinion letter said that telephone operators (anyone remember telephone operators?) should be paid for practicing typing at home because if they failed the typing test they got fired.  Wage and Hour Opinion Letter WH-74 (Sept 9, 1970).  In 2002 the 6th Circuit (for those of you in Michigan, where I am, you are in the 6th Circuit so pay attention) took a pretty expansive view of what “voluntary” meant in Chao v. Tradesmen International, Inc., 310 F3d 904 (6th Cir. 2002).  In Tradesmen, the court held that training that was a prerequisite for employment was “voluntary” even though the employer allowed the employees to start work before the training was completed.  The court stated:  “We do not see why the employer should be penalized for allowing a potential employee to begin earning income while striving to meet certain prerequisites for the job . . . ”  Id. at 910.  The court went on to say:  “Because the training class was a fully disclosed precondition to permanent employment, however, fulfillment of the requirement strikes us as being ‘voluntary’ within the meaning of 29 CFR § 785.27(b).”

And what about that third prong of the exception?  What on earth does “directly related to the employee’s job” mean and why would I give an employee training that was not directly related to his or her job?  Good question.

The training is directly related to the employee’s job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill. For example, a stenographer who is given a course in stenography is engaged in an activity to make her a better stenographer. Time spent in such a course given by the employer or under his auspices is hours worked. However, if the stenographer takes a course in bookkeeping, it may not be directly related to her job. Thus, the time she spends voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee’s job even though the course incidentally improves his skill in doing his regular work.

29 CFR § 785.29.

“Of course” (I didn’t write that, it actually says that in the regulations) “if an employee on his own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job.”  29 CFR § 785.30.  But that is not all.

There are some special situations where the time spent in attending lectures, training sessions and courses of instruction is not regarded as hours worked. For example, an employer may establish for the benefit of his employees a program of instruction which corresponds to courses offered by independent bona fide institutions of learning. Voluntary attendance by an employee at such courses outside of working hours would not be hours worked even if they are directly related to his job, or paid for by the employer.

29 CFR § 785.31.

Finally, there is a regulation on apprenticeship programs that basically provides that time spent in an organized apprenticeship program is not hours worked where the program meets the apprenticeship standards set by the US Department of Labor and the time in the program does not involve productive work or performance of the employee’s regular duties.  See 29 CFR § 785.32.

Donning and Doffing, Oh My.

Let’s talk about preparatory and concluding activities.

A few weeks ago, we talked about the concept of “suffer and permit” and what a broad definition the courts had given to that term.  So, here is a question I will bet my bottom dollar you were asking at that time that I did not answer:  If the Act and the regulations provide this broad a definition for “suffer or permit” to work, why hasn’t some smart . . . person . . . filed a lawsuit claiming he or she should be compensated for driving to and from work?  I mean, after all, I sure wouldn’t get in my car and drive to work unless my boss made me come in, now would I?    In a case called Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1946), the Court held that certain walking time was compensable under the FLSA because it was under the “complete control of the employer.”  In that case the employer had a long complex and employees were required to walk for up to 15 minutes after they punched in to get to their work stations.  After that, it sure isn’t going to take long for somebody to make the leap to driving, now is it?   Well Congress thought paying people for time spent driving to and from work was a bad economic idea and they were afraid that that was one of the natural outcomes of Mt. Clemens Pottery so they passed the “Portal-to Portal Act” to amend the FLSA.

According to the regulations:

(a) The Portal-to-Portal Act. The Portal-to-Portal Act (secs. 1-13, 61 Stat. 84-89, 29 U.S.C. 251-262) eliminates from working time certain travel and walking time and other similar “preliminary” and “postliminary” activities performed “prior” or “subsequent” to the “workday” that are not made compensable by contract, custom, or practice. It should be noted that “preliminary” activities do not include “principal” activities. See §§790.6 to 790.8 of this chapter.

29 CFR § 785.9.

That answers some questions, like do I have to pay my employees for simply driving to work.  Clearly, the answer is No (in most cases).  But what is a “principal” activity?  The regulations under the Hours Worked section of the regs go into a bit more detail to try to help explain that concept.

In November, 1947, the Administrator issued the Portal-to-Portal Bulletin (part 790 of this chapter). In dealing with this subject, §790.8 (b) and (c) of this chapter said:

(b) The term “principal activities” includes all activities which are an integral part of a principal activity. Two examples of what is meant by an integral part of a principal activity are found in the report of the Judiciary Committee of the Senate on the Portal-to-Portal bill. They are the following:

(1) In connection with the operation of a lathe, an employee will frequently, at the commencement of his workday, oil, grease, or clean his machine, or install a new cutting tool. Such activities are an integral part of the principal activity, and are included within such term.

(2) In the case of a garment worker in a textile mill, who is required to report 30 minutes before other employees report to commence their principal activities, and who during such 30 minutes distributes clothing or parts of clothing at the workbenches of other employees and gets machines in readiness for operation by other employees, such activities are among the principal activities of such employee.

Such preparatory activities, which the Administrator has always regarded as work and as compensable under the Fair Labor Standards Act, remain so under the Portal Act, regardless of contrary custom or contract.

(c) Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance. If an employee in a chemical plant, for example, cannot perform his principal activities without putting on certain clothes, changing clothes on the employer’s premises at the beginning and end of the workday would be an integral part of the employee’s principal activity. On the other hand, if changing clothes is merely a convenience to the employee and not directly related to his principal activities, it would be considered as a “preliminary” or “postliminary” activity rather than a principal part of the activity. However, activities such as checking in and out and waiting in line to do so would not ordinarily be regarded as integral parts of the principal activity or activities.

29 CFR § 24.

Now you would think that would settle when an activity is “indispensable” and thus compensable.  If we go way back to the 50’s, we find a couple of cases decided by the Supreme Court that set the bar for when clothes changing must be paid.  And we have a reg for that too:

These principles have guided the Administrator in the enforcement of the Act. Two cases decided by the U.S. Supreme Court further illustrate the types of activities which are considered an integral part of the employees’ jobs. In one, employees changed their clothes and took showers in a battery plant where the manufacturing process involved the extensive use of caustic and toxic materials. (Steiner v. Mitchell, 350 U.S. 247 (1956).) In another case, knifemen in a meatpacking plant sharpened their knives before and after their scheduled workday (Mitchell v. King Packing Co., 350 U.S. 260 (1956)). In both cases the Supreme Court held that these activities are an integral and indispensable part of the employees’ principal activities.

29 CFR § 785.25.

Section 3(o) of the Act says:

In determining for the purposes of sections 206 and 207 of this title the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

29 USC 203(o).

So changing clothes is excluded, right?  Not so fast.  What if I have to put on special equipment?  This was a hot issue when the Portal-to-Portal Act was passed and it remains a hot issue today.   And the DOL can’t seem to make up its mind.  Prior to 2002, for example, the DOL issued an opinion letter concluding that protective gear worn in meat packing, like mesh gear, could not be considered “clothes” under section 203, so it was compensable.  Then in 2002, the DOL issued a new opinion letter stating that clothes under section 203(o) did include the protective equipment worn in the meat packing industry.  Then in 2010, the DOL changed its mind again and determined that protective equipment was not “clothes” under 203(o) so, again, putting on and taking off this special equipment was compensable.  And the DOL did such a good job of explaining all of this (catch the sarcasm there?) that just last month the Supreme Court in Sandifer v. U.S. Steel had to decide the issue all over again.  In Sandifer the issue was, is donning and doffing protective gear compensable under the FLSA when it was exempted from time worked by a collective bargaining agreement?

Ok, so let’s go back to Section 3(o) of the Act.  What is important here?  First, what are “clothes”?  That’s right, the Supreme Court of the United States is deciding if protective gear is clothes.  The union argued No, it is not, so you can’t bargain changing into it away.  The company argued Yes, it is.  The Court split the baby.  They defined clothes as something designed to cover the body and are commonly regarded as articles of dress.  So what is next?  “Changing.”  How about “time spent altering dress.”  Yep, that’s what the Court said.  So where does all of this take us?  The Court said:  “Applying the foregoing principles to the facts of this case, we hold that petitioners’ donning and doffing of the protective gear at issue qualifies as ‘changing clothes’ within the meaning of § 203(o).”  So protective gear is clothes and putting it on is changing and that means . . . . you can collectively bargain the right to be paid for putting on protective gear away.

What is the moral of this story?  Before you decide you don’t have to pay employees for changing on site, check with your labor lawyer.

“I’m beat, time for my break!” Rest and Meal Periods under the FLSA.

“Hey, I’ve been at this for a while, it’s time for my break.  You have to give me two 10 minute breaks and a 30 minute lunch period!”  Heard that one before?  Let’s get one thing out of the way right now.  Nothing, let me say that again, NOTHING in the FLSA requires you to give an employee who is 18 years of age or over any break ever.  That’s right, you can work your 18 year old employees for 24 hours straight if that is what you want to do.  Go ahead and try it and see how long you have any employees, but the FLSA does not require breaks.

Now before you run off and try that, you better check your state law.  Some states do have requirements for breaks.  States like California have very specific and employee friendly laws that require breaks at specific intervals, and some states like Michigan have no such laws for employees 18 and over.  And there are different rules for minors.  And since we are talking about the FLSA and not state law, we are not going to get into those specifics.

The FLSA Handy Reference Guide says,  And by the way, I am not making up that title, don’t believe me, you can find the Handy Reference Guide to the Fair Labor Standards Act at  anyway, the Handy Reference Guide says:

While the FLSA does set basic minimum wage and overtime pay standards and regulates the employment of minors, there are a number of employment practices which the FLSA does not regulate. For example, the FLSA does not require:

(1) vacation, holiday, severance, or sick pay;

(2) meal or rest periods, holidays off, or vacations;

(3) premium pay for weekend or holiday work;

(4) pay raises or fringe benefits; or

(5) a discharge notice, reason for discharge, or immediate payment of final wages to terminated employees

So why are we talking about rest and meal periods?  Because the FLSA does define when rest and meal periods must be considered hours worked and must be paid.  Let’s start with “rest periods.”

Rest periods of short duration, running from 5 minutes to about 20 minutes, are common in industry. They promote the efficiency of the employee and are customarily paid for as working time. They must be counted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time or on-call time. (Mitchell v. Greinetz, 235 F. 2d 621, 13 W.H. Cases 3 (C.A. 10, 1956); Ballard v. Consolidated Steel Corp., Ltd., 61 F. Supp. 996 (S.D. Cal. 1945).)

29 CFR § 785.18.

So that 10 minute break you give to your employees in the first half of their shift and the other one you give to them in the second half of their shift are not required by law, but if you do give those breaks you have to pay the employees for the time spent on break.  You knew that, didn’t you, but now you know why.

What about meal periods, you know, lunch breaks?  Well, they are different.  First, they are not coffee breaks or times for snacks.  The employee must be free to do their own thing.

(a) Bona fide meal periods. Bona fide meal periods are not work time. Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.

29 CFR § 19(a).

The employee does not have to be free to leave the employer’s premises for a meal time to be excluded from working time, but as you can see in the regulation above, you can’t make the employee eat at his or her desk or his or her machine.

And with that, it is time for me to take a break.  Talk to you next week.