Q & A

Question: Say an officer sustains on on-duty, work-related injury. The injury requires some type of ongoing medical treatment, and the officer – as part of the treatment – goes to doctor’s visits that are outside of his/her normal working hours. Workers’ compensation clearly pays the cost of the medical treatment/visits, but is the officer’s time (medical appointments outside of normal work hours) compensable under the FLSA?

Answer: The time spent in treatment for a workers’ compensation injury would not be compensable as “work” under the FLSA. That said, an employer should be wary of a recent decision from the Federal Seventh Circuit Court of Appeals, which holds that if an employer mandates treatment as a condition of employment, then the time spent in treatment is compensable under the FLSA.

Question: I am looking for information and/or case precedent to help our organization learn more about the legality of audiotaping police employees during private, non-official conversations, either telephonically or within the department (station) areas.

Answer: Coincidentally, Will Aitchison, LRIS’s Executive Director, just had this issue come up in his law practice. He could find no cases that had addressed the issue.

We see several implications to such a policy: (1) A change in past practices in this area might well be considered to be a change in a mandatory subject of bargaining, requiring the employer to collectively bargain over the issue before implementing the change; (2) state privacy laws might well have some implications in the area; and (3) without the legality of the policy, there are substantial management questions as to whether such a policy is advisable.

Question: Our department has a no tobacco use policy within department buildings and vehicles. While on a non-compensated dinner break in a department building, while in uniform, I used smokeless tobacco. The on duty supervisor walked in the room as I placed the tobacco in my mouth and immediately told me to remove the tobacco. The question I have is at what point is my time mine or the department’s? Am I under the umbrella of department policy when off duty as long as my activities are not unlawful?

Answer: If you were in a department where collective bargaining occurred, we would tell you that the regulation of tobacco use in the workplace is a mandatory subject for collective bargaining. However, you’ve indicated that you’re not from a department with bargaining. That said, we believe your employer can ban any form of tobacco use within its buildings, whether the employees are using tobacco during their on-duty or off-duty time. If the regulation extended to an uncompensated meal period taken on non-employer property, our answer might be different.