The Fair Labor Standards Act (FLSA) affects most public and private employment. The act requires employers to pay employees, who are not otherwise exempt, at least the federal minimum wage and overtime pay for more than 40 hours worked in a given workweek. The FLSA was originally established in 1934, but has been amended several times in order to make changes to the minimum wage requirements. The issue at hand is whether the employee should be compensated for the 36 hours of overtime associated with working out and conditioning and if on call time should be counted as overtime as well. I believe that despite the fact that being a member of SWAT requires great conditioning, the time used at the gym should not count as hours worked and thus should not be paid out as overtime. The employer most likely used the primary duty test in which they determined the primary duty of the job is not exercising in the gym, but rather the field work that is done by the SWAT team.
There are five things an employer can do to ensure compliance with FLSA and avoid claims:1. Clearly Communicate That Non-Exempt Employees Will Be Paid For All Time Worked•Under the FLSA, non-exempt employees are entitled to be compensated for all work that the employer allows. The argument plaintiffs make in cases is that they did not record all of their time because they did not know that they were entitled to be compensated for all hours worked. Such a policy will give employees notice that they have a right to be compensated for their services, even if no prior approval was received for overtime.
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2. Clearly Communicate That Non-Exempt Employees Must Record All Time Worked•Many cases center on the claim that management directed or otherwise pressured employees not to record all of their working hours. By enforcing a policy that non-exempt employees must record all time worked, employees will be on notice that management cannot force them to work off the clock. The employee must report all time worked even if the hours worked are not within the normal schedule.
3. Clearly Communicate That Non-Exempt Employees Must Receive Pre-Approval For Overtime•A policy requiring non-exempt employees to obtain pre-approval of overtime allows employers to enforce a pre-approval policy for overtime that will help discourage overtime work except where that work is genuinely appropriate andit will decrease inflated claims of off-the-clock work.
4. Clearly Communicate That Non-Exempt Employees Must Not Perform Any Work Whatsoever During Breaks, Or Else Must Record It As Working Time•Employers should enforce a policy that non-exempt employees must notengage in any work while on breaks and that if they perform work, they must record the time for the entire break as hours worked. The rationale is that if the employee was interrupted and still performed work, then the employee has not truly been relieved of all duties and continued to render services throughout their break.
5. Be Aware Of Potentially Compensable Tasks At The Start And Conclusion Of Shifts•Ordinarily, tasks are not considered compensable work unless they are done primarily for the benefit of the employer. De minimis preliminary and postliminary activities are thus not generally viewed as work. While such time might seem insignificant, the potential liability can be high when time each day adds up over several years and for possibly hundreds or thousands of employees.
References:1)www.dol.gov2)http://www.dol.gov/elaws/esa/flsa/overtime/glossary.htm?wd=primary_duty3)www.flsa.com
