From New Jersey
Question: We have in our contract that if the City exhausts its overtime budget, it can and will pay comp time. Question No. 1: We work a 19-day cycle in the fire department. Does all comp time have to be at 1 1/2 times the rate or straight time if hours during the FLSA cycle are not met? Question No. 2: When we request to use comp time we get denied if it will cause overtime. Did the unduly disrupt rule change or do they have the right to not approve time off?
Answer: As courts have interpreted it, the FLSA says basically three things about your situation:
1. When an employee crosses the FLSA’s overtime threshold, all work after that point must be paid at the time and one-half rate, either in comp time or in the form of cash.
2. When an employee crosses the FLSA’s overtime threshold, all hours under the threshold must be paid at the straight-time rate.
3. If the employee does not cross the FLSA’s overtime threshold, the employee is free to pay employees at whatever rate of pay it decides (or contracts with a union to pay) so long as the rate of pay is above the minimum wage.
From Washington
Question: Our Guild members work a contractual 24-day work cycle. We have traditionally worked 132 hours in that 24-day cycle. We are contractually allowed to change shifts once per year. Depending on an officer’s shift bid, he/she could work six days straight (68 in six days). The Chief refuses to pay overtime, as he deems the start of the 24-day cycle on the first day of the new schedule. These officers are working an additional cycle during the month, so it seems only fair that they should get overtime for the extra work.
The Chief says that it all works out through the year. Some officers had six days off. My concern is that there is no guarantee that the officers who worked six days straight this rotation will get six days off during the next rotation.
Answer: Here’s the way shift changes work under the FLSA. The FLSA does not mandate overtime when employees work any number of consecutive workdays. Rather, the question is whether they work enough hours that they exceed the relevant overtime threshold.
In the case of law enforcement officers, the employer is given the right to establish a partial overtime exemption under Section 207(k) of the FLSA. That exemption allows the employer to establish a work period of between seven and 28 days in length as opposed to using the basic “workweek” measurement for overtime.
We’re assuming from your question that your employer has established the 24-day work period under Section 7(k). That means that employees need not be paid FLSA overtime until they work more than 147 hours in the 24-day period. The employer is also allowed to establish the starting time and day of the 24-day period; once they are established, they may not be repeatedly changed by the employer to avoid overtime liability.
What this tells you is that you need to know the starting day and time of the City’s 24-day work period. Once you know that, it is merely a matter of counting scheduled hours during the 24-day period to see if they exceed 147. If they do, there’s an FLSA problem.
From Michigan
Question: I work for a police department. I work a ten-hour day, a 40-hour workweek. I am sent to specialized computer training 57 miles away at a University. It takes 1 1/2 hours to get there and 1 1/2 hours to get home. My employer adjusted my workdays to an eight-hour workday, five days a week (because the training is five days at eight hours a day.) I am allowed to take a company car. I spend 11 hours away from home, three hours traveling, eight hours in class. Is the three hours of travel time overtime under the FLSA (total of 15 hours for the week) or should the fifth day be at ten hours of overtime for the week?
Answer: To our knowledge, there’s only one federal court of appeals decision on this issue, the Ninth Circuit’s decision in Imada v. City of Hercules. That case rejects the Department of Labor’s position on travel time, and would strongly suggest that the FLSA would not require the employer to compensate you for the travel time under the facts you’ve described. Since you’re in Michigan, the federal courts there are not bound by the Ninth Circuit’s opinion in Imada, but could choose to follow it. So, the ultimate question will come down to whether your courts would find the Department of Labor’s position (which would require you to be compensated) or that of the Ninth Circuit more persuasive.