It might sometimes seem from the parade of headline-grabbing, employee-favoring court decisions that employers are destined to lose in so-called "off-the-clock" cases under the federal Fair Labor Standards Act.  These lawsuits involve claims by non-exempt employees that the employer has failed to pay the FLSA-required wages for work that went unrecorded.  But a ruling by the Tenth Circuit U.S. Court of Appeals (with jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) in Brown v. ScriptPro shows that, with the right policies, systems, and practices in place, it is possible for an employer to prevail.

The Good News . . .

Brown claimed that he was entitled to overtime compensation for work he performed at home.  However, he produced no evidence of the amount and extent of this work, including that he did not record any of it in ScriptPro's timekeeping system, which he could have accessed from home.  ScriptPro required employees to record all worktime, and apparently it enforced this requirement.

The court ruled that Brown had no FLSA claim.  In the court's view:

◊   ScriptPro kept accurate records of employees' hours worked;

◊   Brown could have recorded his work in ScriptPro's system, but he did not;

◊   Brown had kept no other records to document the amount of time he worked; and

◊   Brown did not otherwise carry his burden to demonstrate as a matter of just and reasonable inference how much time he claimed to have worked.

. . . But Keep It In Perspective

The soundbite point drawing attention to this case in the news is the court's statement that, "where the employee fails to notify the employer through the established overtime record-keeping system, the failure to pay overtime is not a FLSA violation."  However, the court's lead-in qualifier for that statement was, "[u]nder these circumstances".  Had there been a dispute about whether ScriptPro kept accurate time records, for example, the result might have been different.

Employers should not assume that courts will decide this way no matter what the situation is, or that meeting their FLSA timekeeping obligations is simply a "set it and forget it" matter of publishing a policy.  Instead, the prospects for a positive outcome will be improved by:

♦   Determining all the activities that count as FLSA "hours worked";

♦   Developing systems and policies for accurately capturing all such worktime;

♦   Communicating those systems and policies to the employees;

♦   Requiring managers and supervisors to enforce those systems and policies; and

♦   Monitoring time records to evaluate whether they are accurate.

Brown v. ScriptPro represents a sound, commonsense result on a particularly good set of facts for the employer.  Other employers would be wise to do all they reasonably can to see that their circumstances will be similarly favorable if there is an off-the-clock claim.

◊   Have a comment or something else to add? Please use our comment feature below.

The best answer to last week's Quick Quiz is, "No", it is not likely that Alan's time between calls would be found to be worktime under the federal Fair Labor Standards Act.

The idle time during which an otherwise off-duty employee is available to be called upon to do something might or might not be compensable FLSA "hours worked", depending upon the situation.  Generally, the question is whether this idle time while "on call" is spent predominantly for the employer's benefit as opposed to the employee's.  The answer usually turns upon the extent to which the employee is able to use the time effectively for personal purposes.

What Are The Important Factors?

The U.S. Labor Department and the courts say that this determination requires an evaluation of all the relevant facts.  Among the things often considered are whether:

♦   The employer requires the employee to remain on the employer's premises;

♦   The employer requires the employee to wait at home for calls or messages or confines the employee to an excessively-restricted geographical area;

♦   The employee receives numerous, frequent, and/or lengthy work assignments during the on-call period;

♦   The employee must respond within a short timeframe under the circumstances (especially if the employee must travel somewhere to do the work);

♦   The employer requires the employee to be on-call frequently, never relieves the employee from on-call status, does not permit the employee to exchange calls or call periods with another worker, or does not allow the employee to turn down at least some calls;

♦   There is an agreement or understanding covering the arrangement (although an employee may not agree to anything that violates the FLSA).

Ordinarily, some combination of restrictive factors is present when idle on-call time is found to be compensable work.

But the time need not be free from any restrictions whatsoever.  For example, courts have found these periods not to be worktime even though the employer required the employee to remain sober and not to take any mind-altering drugs, or to stay well-groomed and appropriately dressed.  Neither is it necessary for the employee to be able to engage in literally any personal activity he or she might wish.

So What About Alan's Situation?

Alan is on-call only for seven days a month, and only for six hours on each on-call day.  He need only phone within 30 minutes after receiving a message, rather than physically report somewhere within that time.  He averages far less than one duty-message per on-call day and spends roughly 5% to 7% of his on-call period performing work.  Although he cannot drink alcohol and must stay in the area, these restrictions standing alone do not mean that he is unable to use the on-call time for a wide variety of personal purposes.  It is probable that a decisionmaker would not see these particular circumstances as causing Alan's idle on-call time to be FLSA "hours worked".

Of course, the predominant-benefit question is necessarily fact-specific.  Therefore, each situation should be separately evaluated.

And Don't Forget . . .

States and other jurisdictions might have "on call" rules that are tougher on employers than the FLSA is.  Employers should look at every applicable wage-hour law to find out whether this is the case.

◊   Have a comment or something else to add?  Please use our comment feature below.

Alan is a Help Desk Associate for The Big Corporation.  He is subject to the federal Fair Labor Standards Act's minimum-wage, overtime, and timekeeping requirements.

Alan normally works from 8 a.m. until 4 p.m., Tuesday through Saturday.  Once each calendar month, Alan is on-call between 5 p.m. and 11 p.m. each day for a seven-day period.

He has to call-in within 30 minutes after receiving an e-mail on his cellphone.  While he is on-call, he cannot drink alcoholic beverages, and he cannot leave the metropolitan area in which he lives.  Typically, Alan receives two or three messages in a seven-day on-call period and spends about an hour dealing with each problem that prompted the e-mails he received.  He accurately records all of the time he spends handling those problems, and his employer pays him properly under the FLSA for this worktime.

But what about the remaining time for which Alan is on-call?  Is it likely that his idle time between calls will be deemed to be FLSA "hours worked"?

The answer to our September 23 Quick Quiz is, "None of it".

The relevant question under the federal Fair Labor Standards Act gets down to whether Ellen was "engaged to wait" (which is compensable worktime) or was "waiting to be engaged" (which is not).  There is not always an obvious answer to whether this kind of time is or is not compensable work under the FLSA.  As the U.S. Labor Department puts it, "Whether waiting time is time worked under the [FLSA] depends upon [the] particular circumstances."  29 C.F.R. § 785.14.

The Labor Department says that an employee is often "engaged to wait" even during periods of inactivity when he or she can leave the premises, because these periods of time are typically unpredictable and of short duration and do not permit the person to use the time effectively for his or her own purposes.  According to the Labor Department, in these situations, the waiting periods are an integral part of the job so as to be compensable worktime.  See, e.g., 29 C.F.R. § 785.15.

On the other hand, the Labor Department has also said that an employee's waiting time might not be hours worked in situations in which the employee:

◊   Is completely relieved of all duties and responsibilities;

◊   Is told in advance that he or she is permitted to leave the job;

◊   Is told in advance that work will not resume until a specified time; and

◊   Has a long-enough time to use the period effectively for his or her own purposes.

See, e.g., 29 C.F.R. § 785.16.(a).  Once again, though, whether the amount of time involved is of a sufficient length "depends upon all the facts and circumstances .  .  .."  Id.

In our hypothetical scenario, the best answer is that Ellen is "waiting to be engaged" between 8:45 p.m. Sunday and 7 a.m. Monday.  She has no duties or responsibilities during that period; she performs no work during that time; she knows she is not required to be at the booth until 7 a.m. on Monday; and clearly the period is long enough for her to use it for her own, personal purposes.  The fact that she is out-of-town is not enough in itself to cause that period of time to count as FLSA "hours worked".

◊   Have a comment or something else to add?  Please use our comment feature below.

Ellen is a non-exempt employee who works in Bigtown for The Acme Corporation.  She is assigned to hand-out brochures at TAC's booth at a tradeshow at a hotel in Salestown on Monday.  She will stay in the same hotel where the show will be held.  Her instructions are that she has to be at the booth location beginning at 7 a.m. on Monday, when she will help set up the booth.

She arrives at the Salestown hotel on Sunday night at 8:45 p.m.  She immediately goes to dinner until 10:15 p.m.  She then returns to her hotel room, reads a novel for a while, and goes to sleep.

She wakes up at 6 a.m., goes through her normal "get ready" routine, eats a quick breakfast downstairs, and reports to the booth location at exactly 7 a.m.

Under the federal Fair Labor Standards Act, how much of Ellen's time between 8:45 p.m. Sunday and 7 a.m. Monday is worktime?

Please use the poll buttons to the right to register your answer.