Posted on July 23, 2008 by Mark Tabakman

Salute Me And Then Pay Me Overtime

The Court of Appeals for the Tenth Circuit has held that civilian military recruiters were non-exempt employees and therefore entitled to overtime pay. As they were salaried, their back due overtime will be computed under the so-called “fluctuating workweek” method, which generates a lower recovery than traditional time and one-half. When an employee who is salaried is deemed non-exempt, his regular rate may/will change from week to week, depending on the number of hours worked in that week. That is why the regular rate fluctuates.

The employees were Army and Army Reserve recruiters for Resources Consultants Inc. in Salt Lake City, Utah. They testified that their duties extended only to cold-calling potential recruits to get them to official Army recruitment stations where they would take the varied entrance examinations and be subject to other testing/induction requirements. The company defended by asserting that their responsibilities encompassed developing better relationships with potential recruits and interacting with them more extensively, such as testing their English/math proficiency and escorting them to Military Entrance Processing Stations.

The administrative exemption is the toughest of the three white collar exemptions for employees to fit under. This category is not and cannot be used as a catch-all exemption designation for any employee whom the employer believes does some important function. There are very specific criteria that must all be satisfied. Of these, the requirement to utilize discretion and independent judgment is probably the toughest to meet, as it entails much more than just making choices while performing routine job functions.
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Posted on July 16, 2008 by Mark Tabakman

Predators, Physicals and Working Time

As I have written about, many activities may be deemed compensable working time, under the right circumstances.  Some of these activities might not appear immediately visible as working time. For example, a class of almost 200 employees who worked at a facility for sexually violent predators on McNeil Island, Washington State and had to ride a ferry to and from the facility were not entitled to overtime pay for the travel time on the ferry, held an appellate court.

The court ruled that these employees were not “on duty” at the Special Commitment Center during their commute and are not at a “prescribed work place.” There were nineteen scheduled ferry runs per day, with each trip taking approximately 20 minutes. The employees did not have to perform any work during the trip, but they claimed they could be disciplined if they misbehaved on the boat.

As a general rule, home-to-work commutation is not compensable. This case falls into this general rule as the ferry ride was merely an extension of the home to work, ordinary commute.

Conversely, time spent by employees in drug testing and physical examinations required by the Department of Transportation for commercial licensing purposes are engaged in productive work for which they must be compensated, under a ruling of the US Department of Labor. When the employees are engaged in these activities, they are not “free” to do other things and the restriction on their time emanates from a requirement of the employer, in order to serve the employer. Thus, during those times, the workers are subject “to the employer’s discretion and control.”

Interestingly, the DOL ruled that it did not matter whether the drug tests were on duty or off duty. The agency concluded that “whenever an employer imposes special requirements or conditions that an employee must meet before commencing or continuing productive work, the time spent in fulfilling such special conditions is regarded as indispensable” to the principal activity. Therefore, if the US government mandated physical examinations and drug testing as a “condition of the employer’s license to operate its business,” that time spent was for the benefit of the employer and compensable.

These determinations are often close calls and hinge on the relationship of the activity to the primary work activity and whether there is an indispensable relationship. Travel time issues are especially thorny questions.
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