(Credit: nyul–stock.adobe.com)
No. 2
Working 9 to 5 and No More
A Guide to Preventing Suffered and Permitted Overtime Claims
By Ms. Jennifer D. Talley
Working 9 to 5, what a way to make a living
Barely getting by, it’s all taking and no giving
They just use your mind and they never give you credit
It’s enough to drive you crazy if you let it
9 to 5, for service and devotion
You would think that I would deserve a fair promotion
Want to move ahead but the boss won’t seem to let me
I swear sometimes that man is out to get me.1
The Army’s mission is “to deploy, fight, and win our Nation’s wars by providing ready, prompt, and sustained land dominance by Army forces across the full spectrum of conflict as part of the Joint Force.”2 Any obstacle to the Army’s ability to pursue its mission warrants careful analysis and efforts to eliminate it. The obstacle this paper focuses on is the cost of grievances, judgments, and settlements for labor and employment actions.
“Expenses are the costs incurred to operate and maintain the [Army], such as personal services, supplies, and utilities.”3 To the extent possible, the Army should only incur those expenses necessary to accomplish the mission. Like most industries, labor costs represent one of the most substantial costs to the Department of Defense service components.4 Further, the Army, more so than the Navy or Air Force, spends a larger proportion of its annual budget on personnel vice procurement.5 Therefore, the potential cost of labor mismanagement is substantial.
Importantly, the Army must record any settlement, a claim payable under the law, as an obligation, which comes out of current available operating funds.6 Necessarily, any settlement in a particular fiscal year will also affect the Army’s ability to fund other expenses and projects vital to its mission success.
A handful of settlements over the last decade underscore the impact that litigation and corresponding settlements, particularly with respect to Fair Labor Standards Act (FLSA or the Act)7 grievances, have on Federal agencies. In 2015, the Laborers’ International Union of North America announced an $80 million settlement for an FLSA grievance it filed against Indian Health Service, an agency of the U.S. Department of Health and Human Services.8 In 2014, the American Federation of Government Employees (AFGE), Council 238, announced a $35 million settlement with the Environmental Protection Agency for a variety of alleged FLSA claims.9 In 2008, AFGE, Council 222 and the National Federation of Federal Employees (NFFE) advertised a $24 million settlement with the Department of Housing and Urban Development.10
To date, the Department of the Army has not settled any FLSA grievances of this magnitude. However, there are eleven similar grievances pending Army-wide.11 These grievances cross command lines and implicate Installation Management Command, Training and Doctrine Command, Forces Command, Army Corps of Engineers, Medical Command, and Army Materiel Command.12 Some of these grievances have been pending for thirteen years.13
Because of the potential cost they represent, a cost that would take money from training and equipping Soldiers needed to fight and win our Nation’s wars, FLSA grievances represent a real threat to mission readiness. It is vital that commanders and supervisors understand the law with respect to the FLSA, with particular attention to suffered and permitted overtime. Implementing preventative best practices within an organization will preempt or mitigate suffered and permitted overtime claims, which will significantly reduce command exposure and potential monetary damages.
This article provides a brief history of the FLSA and its evolution to cover Federal employees. Next, the article examines suffered and permitted overtime and the legal requirements for compensation. Then, the article identifies common problem areas in which suffered and permitted overtime generally arises and explains the impact these complaints have on the mission from a fiscal and readiness perspective. Finally, the article arms commanders and supervisors with best practice tips to prevent these types of grievances from occurring.
The FLSA, enacted by Congress in 1938, provides minimum standards for wage and compensation, including overtime compensation for employees. (Credit: Vitalii Vodolazskyi–stock.adobe.com)
Historical Background
The FLSA, enacted by Congress in 1938, provides minimum standards for wage and compensation, including overtime compensation for employees.14 The impetus in passing the FLSA was to even out the bargaining power between employer and employee and protect those employees without sufficient means to secure a minimum livable wage,15 particularly because of the effects from the Great Depression.16 In 1974, Congress substantially modified the FLSA by including Federal employees within its coverage.17 Congress had previously cited opposition to the inclusion of Federal employees within the FLSA because Federal employees received the protection of Title 5, U.S. Code pay provisions.18 Nevertheless, with the passage of the 1974 amendments, millions of Federal employees received its protections. Currently, approximately 2,850,000 civilian employees work in the Federal Government, the largest employer in the world.19 As such, it is vital to understand how these rules apply to the workforce and ensure proper implementation of the same.
Compensable Work
Certain Federal employees remain statutorily exempt from the FLSA, even though Federal employees came under the purview of the FLSA due to the 1974 Amendments.20 This distinction is critically important. If an employee is exempt from the FLSA, they are not entitled to FLSA overtime pay.21 A non-exempt employee, however, is subject to the FLSA’s protections and must receive overtime pay for all hours of work that “are in excess of 8 [hours] in a day or 40 [hours] in a workweek at a rate equal to one and one-half times the employee’s hourly regular rate of pay.”22 Important to this compensation determination and calculation is first, necessarily, defining a non-exempt employee’s hours of work.
As the agency that administers the FLSA for Federal employees,23 the Office of Personnel Management (OPM) defines “hours of work” as “[a]ll time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency.”24 The OPM expressly includes “suffered or permitted work” as hours of work,25 which are compensable.26 Suffered or permitted work is defined as “[1] any work performed by an employee for the benefit of the agency, whether requested or not, [2] provided the employee’s supervisor knows or has reason to believe that the work is being performed and [3] has an opportunity to prevent the work from being performed.”27 Finally, OPM regulations require an agency to compensate an employee in quarter of an hour increments for irregular or occasional overtime work.28 The OPM goes on to distinguish between (1) principal; (2) preparatory or concluding activities; and (3) preliminary or postliminary activities,29 which is an important step in determining compensation for a non-exempt employee.
Principal Activities
Principal activities are those activities that the “employee is employed to perform” and are compensable.30 Dunlop v. City Electric Inc. defined “principal” as part of the work the employee performs “in the ordinary course of business.”31 The Supreme Court, in Steiner v. Mitchell, defined “principal” as work that is “an integral and indispensable part of the principal activities for which covered workmen are employed.”32 A classic example of a principal activity is the time spent by battery plant workers changing into clothes at the beginning of their shift and showering at the end of their shift (in facilities that state law requires the employer to provide).33 The time spent changing into clothes and showering is integral to these employees’ principal activities because their jobs entail using toxic materials that could be hazardous to health and safety.34
Preparatory and Concluding Activities
A preparatory activity is pre-shift work that an employee performs prior to the start of his or her principal activities.35 A concluding activity is post-shift work performed after the end of his or her principal activities.36 Importantly, if a preparatory or concluding activity is “closely related to an employee’s principal activities, and is indispensable to the performance of the principal activities, and that the total time spent in that activity is more than [ten] minutes per daily tour of duty” the employer must treat the activity as hours of work.37 Of course, this may result in the employee receiving overtime pay.38
In Integrity Staffing Solutions, the Supreme Court held that the time spent waiting to undergo and undergoing security screenings for warehouse workers was not preparatory and, therefore, not compensable.39 Important to the Court’s decision was the fact the company did not employ the workers to undergo security screenings, but rather to “retrieve products from warehouse shelves and package those products for shipment to Amazon customers.”40
Contrast this scenario, which focused on a security screening unrelated to the warehouse employees’ actual job duties, with one in which warehouse employees grieved an issue related to the time spent checking out or picking up the supplies necessary to perform the packaging of the products to Amazon customers. If the supplies are necessary to perform the job, then the employee could not perform the job without them, making this potential scenario one in which the time could be compensable.41 In the context of Federal employees in the Army, it is likely that the process of using a common access card to log in and out of the computer system is a preparatory activity. There are very few scenarios in which a Federal employee does not require access to Government email and networks, which are available to the employee through their common access card.
Preliminary and Postliminary Activities
It is important to distinguish preparatory or concluding activities from preliminary and postliminary activities. Activities that are preliminary or postliminary, those performed prior to or just after an employee’s principal activities (that are not preparatory and concluding activities either), are not principal activities and are not part of an employee’s hours of work.42 As such, these activities are not compensable.43 The FLSA excludes these activities from the minimum wage requirements to prevent compensation for activities that are for an employee’s own benefit and not those for which the agency would obtain a benefit.44
For instance, an employer is not required to compensate employees who report to work early for their own convenience.45 There are many reasons an employee may arrive to work for their own convenience. Most commonly, a person may leave their home earlier than necessary to avoid rush hour traffic. An employee’s claim for suffered and permitted overtime would likely be without merit if they engaged in activities such as drinking coffee, socializing, and conducting other non-work-related activities after they arrived early to the worksite.46
Typically, an employer should not compensate an employee for changing into clothes when they arrive to work either.47 However, an employer must compensate employees for the time it takes to change in and out of specialized protective gear.48 Although the Federal Labor Relations Authority (the Authority) has not directly addressed whether changing into or out of standard clothing is a preliminary or postliminary activity, the Authority has ruled that “[t]he donning of protective gear is generally compensable only if it is specialized or unique, rather than generic.”49 Similarly, waiting to change into clothes is not compensable.50
De Minimis Exception
As discussed above, OPM regulations state that a preparatory or concluding activity must take more than ten minutes per day to be compensable.51 Employees are not entitled to overtime compensation for fractional hours of irregular or occasional overtime work.52 Having outlined what work is compensable and what work is not, it is now appropriate to examine suffered and permitted overtime in those contexts.
Suffered or Permitted Work
It should be clear to all employers that they must pay employees for doing their jobs and for the activities that are directly related, or indispensable, to their jobs during their regular tours of duty. Similarly, it is probably quite clear that an employer should pay its employees for regularly scheduled overtime ordered and approved by a supervisor. However, questions and issues begin to arise when one carefully examines the other type of overtime for which employers must provide compensation for non-exempt employees: suffered and permitted overtime.
Suffered and permitted overtime is compensable work if it meets the following three-prong test: “[1] any work performed by an employee for the benefit of the agency, whether requested or not, [2] provided the employee’s supervisor knows or has reason to believe that the work is being performed and [3] has an opportunity to prevent the work from being performed.”53 Further, the above discussion sheds some light on what is work that is “for the benefit” of the agency to meet the first prong of the test.54
However, work that is merely for the benefit of the agency is not automatically compensable. As outlined in the test, even if the work is for the benefit of the agency, the employee’s supervisor must also know or have reason to believe that the employee is performing the work.55 This is constructive knowledge—whether the supervisor should have known—not whether the supervisor could have known.56
Importantly, it is the employee’s burden to prove supervisory knowledge.57 The Authority has gone so far as to deny claims for suffered or permitted overtime even when supervisors admitted to seeing employees at their desks during lunch.58 The mere fact that a supervisor may have seen employees at their desks during lunch did not meet the union’s burden in proving that the supervisor knew or should have been aware that employees were working during lunch breaks.59 Similarly, agency access to electronic patient records, computer login information, and other information that may show when employees are working does not establish supervisory knowledge on its own.60 The ultimate determination of constructive knowledge of subordinate work turns on the “reasonable diligence” of supervisors.61
However, the fact that the burden is on the employee or union to prove supervisory knowledge does not give supervisors carte blanche to ignore this potential issue.62 In fact, the opposite is true. In order to reduce command exposure and potential damages, supervisors must implement best practices to prevent these claims from occurring. It is not enough for employers to hope there may be a good defense if an employee files a grievance.
Common Problem Areas and Impact on the Command
Before addressing best practices, it is important to consider where FLSA issues commonly arise so that commanders and supervisors can spot these problems proactively. Certain organizations may be more susceptible to FLSA grievances due to the nature of the work performed. It is common to see FLSA complaints arise when an organization has daily or weekly meetings, formations, or pre-shift meetings before the start of the duty day.63 In organizations with twenty-four-hour operations, FLSA grievances may arise when there is (or is not) a hand-off to the incoming shift.64 For law enforcement organizations, grievances may arise when employees draw a weapon at the start of their shift.65 In the medical field, jobs associated directly with patient care can lead to FLSA grievances.66 For instance, it is common to see complaints arise from those in a surgical unit that stay past their stated tour of duty to finish a particular procedure and later allege that they did not receive compensation for that work.
If the union files a grievance that eventually goes to arbitration, the Army may spend close to $10,000 a week in costs related to arbitrator and court reporter fees.67 As indicated above, some of these arbitrations, though they include breaks in time, have been ongoing for over a decade.68 The Army pays for these expenses with operation and maintenance funds.69 As such, the impact to the mission can be significant, both monetarily and from a resourcing perspective.
Aside from costs to pay for the arbitration itself, settlement remains a huge issue as well. The Army must record a settlement as an obligation, which comes out of current available operating funds.70 To appreciate how a settlement that the Army will pay from current funds may affect a particular organization’s budget and plans, it is helpful to illustrate the steps with an example. The average cost for parts, supplies, and so forth to send a brigade combat team to a rotation at the National Training Center for annual training could reasonably, and likely, cost upwards of $80 million.71
As referenced above, other Federal agencies have settled FLSA group grievances for tens of millions of dollars.72 If the Army had not programmed or accounted for this settlement, which it likely would not, it would come directly out of mission funds and significantly affect mission readiness, perhaps thwarting necessary training or equipment required to complete the Army’s military mission.73 As such, the need to implement best practices to prevent these types of claims is clear. The following section provides concrete suggestions to avoid common pitfalls and preserve a unit’s already-programmed operating funds.
Best Practices74
Time and Attendance Policies and Enforcement
Every office should implement a written time and attendance policy that emphasizes regular duty hours with appropriate breaks. Additionally, supervisors should note compliance with time and attendance policies on an employee’s yearly counseling and discuss these issues during midpoint and end-of-year performance reviews. It may be appropriate to limit employees’ access to work spaces before and after duty hours. Perhaps a supervisor needs to open the office doors for employees in the morning rather than allow free access to the facilities at all times.75
Moreover, if there is a particular task that employees believe they need to come in early to perform, but is not actually necessary, management should consider issuing an instruction explicitly stating that employees do not need to (or should not) come in to perform the task.76 An instruction alone would not establish that an employer did not suffer or permit work, but an instruction may relieve management from liability if the work could have been performed during regular hours and management did not pressure the employees to work overtime.77
To the extent that an employee violates the stated time and attendance policy or an explicit instruction that the supervisor has given regarding performance of work, supervisors should consider discipline, if warranted. One possible option for management is to issue a formal reprimand for the employee’s failure to follow a supervisory instruction.78 While the issuance of instructions would not relieve liability for FLSA, as explained in Lindow,79 it provides a mechanism for supervisors to hold employees accountable and enforce the standards to prevent further non-compliance.
OPM regulations state that a preparatory or concluding activity must take more than ten minutes per day to be compensable. (Credit: Postmodern Studio– stock.adobe.com)
Pre-Shift Meetings, Shift Changes, Pre-Shift Work
Case law suggests that pre-shift preparatory activities, such as back briefs or a hand-off of duties to the incoming shift, are preparatory (not principal) and only compensable if the Federal employee performs them for more than ten minutes per workday.80 Very brief interactions between incoming and outgoing shifts is probably permissible, but management must proceed with caution. To the extent these briefings or exchanges become longer, or are, in fact, principal activities, supervisors must compensate the employee.
Further, as noted above, case law suggests that the signing in and out of weapons and other equipment might constitute preparatory and concluding activities if it is closely related to the employees’ principal activities.81 Additionally, time spent traveling to a designated area or location to check out or return equipment is compensable.82 Commanders and supervisors in the Department of Emergency Services on an installation should take particular note of this issue. Best practice dictates that if employees need to check out or pick up equipment at the beginning of their shifts, time to do so, including reasonable travel time, should be contemplated when scheduling shifts.83 Additionally, an agency may consider staggering shift start and stop times to ensure a quicker and more efficient transition between shifts, if necessary.84
If the union files a grievance that eventually goes to arbitration, the Army may spend close to $10,000 a week in costs related to arbitrator and court reporter fees. (Credit: Feng Yu–stock.adobe.com)
Sweeps
As mentioned above, constructive knowledge of overtime work is enough to establish liability under the FLSA if a supervisor should have learned of the overtime work through “reasonable diligence.”85 Constructive knowledge of overtime work and what is reasonable in terms of supervisory knowledge, will necessarily depend on the specific mission and configuration of a particular office or unit. In an office or cubicle setting, it may be advisable to discuss the idea of supervisory “sweeps” at the end of the duty day. For example, a supervisor may want to check in or walk the halls to ensure that employees are appropriately wrapping up their duties and will depart on time at the end of their duty day. This helps enforce the standard that should already be set forth in policy, in individual employee documents (such as appraisals, counselings, and telework agreements) and provides the supervisor vital information as to the work habits of their employees and if there is compliance.
Government Equipment and Telework
Government Equipment
It is incredibly difficult to envision a scenario in which a non-exempt employee, not on any telework agreement, should have access to a government mobile phone or government remote equipment that the employee would use while not in the workplace. Barring some much-nuanced scenario, best practice would be to bar issuance of government mobile devices to non-exempt employees. The risk of overtime violations is too great and there is virtually no reason for a supervisor to contact a non-exempt employee while outside of the workplace and outside of regular working hours.
Telework
Every employee, regardless of whether the telework is regular and recurring or situational, must have a written telework agreement.86 As such, if an employee does not have an executed telework agreement, the employee must never perform work from home. Just as yearly counselings should definitively state that employees shall comply with time and attendance protocols, telework agreements should also include a provision that states that overtime is not permitted without supervisory approval.87
If an employee does have a valid telework agreement, OPM recommends that supervisors clearly outline expectations for telework in the telework agreement.88 When considering the FLSA issues that may arise, supervisors must contemplate the type of technology the employee uses and when it is permissible for them to use it.
As discussed above, a non-exempt employee who does not telework should not have access to remote government technology. However, a supervisor may authorize a non-exempt employee to telework either situationally or on a recurring basis. As such, management should explicitly delineate, in writing, that employees must only utilize remote technology during authorized work hours.
Management should also regularly communicate expectations for use of remote technology to all employees who are teleworking. The definition of “regularly” in this context will depend on factors such as the number of employees teleworking, whether the telework is full-time or situational, and how the office operates generally. However, overcommunicating, while remaining consistent in messaging to all employees, is preferred.
Impact of COVID-19 on Telework
Due to the COVID-19 pandemic, on 12 March, 2020, the Office of Management and Budget encouraged all Federal Executive Branch departments and agencies to “maximize telework flexibilities to eligible workers within those populations that the Centers for Disease Control and Prevention (CDC) has identified as being at higher risk for serious complications from COVID-19 . . . and to CDC-identified special populations including pregnant women.”89 Additionally, OPM stated that an agency may adjust its policies to allow for Federal employee telework if there are “young children or other persons requiring care and supervision” at home.90 For several years, a majority of the Federal workplace shifted to an entirely virtual environment. This shift invariably impacted literal supervisor visibility on employee work hours and presented additional challenges in supervision.
However, on 15 May 2023, OPM removed the COVID-19 governmentwide operating status announcement.91 That announcement stated that the Federal Government should operate “Open with Maximum Telework Flexibilities to all Current Telework Eligible Employees, Pursuant to Direction from Agency Heads.”92 Based on the fact that COVID-19 “is not driving decisions regarding how Federal agencies work and serve the public as it was at the outset of the pandemic,”93 the Government removed that guidance. This change will reimplement the previous rule that all teleworkers report to their duty station twice a pay period.94
Telework, while perhaps not as prolific now as it was during the height of the pandemic, is here to stay in some fashion. It is imperative that supervisors and commanders remain vigilant in tracking employee work whether it be fully in person, fully remote, or hybrid. In fact, a hybrid telework model may present additional challenges for which supervisors will need to contend.
To address these concerns, certain directorates have been able to leverage the systems already in place for their operations to track productivity and maintain accountability of employees in a largely virtual environment.95 For example, certain branches of the Network Enterprise Center (NEC) have always relied on ticketing systems to track work orders and work product.96 Now, supervisors utilize the ticketing system, along with daily accountability reports from employees, to more closely track hours worked and productivity.97 Further, employees in other branches of the NEC must log in to separate networks to perform their jobs.98 Supervisors are now using reports of this login information to confirm and spot check when employees are performing work to ensure compliance with the FLSA.99
While not every job will be as easy to track as some of the jobs within the NEC, there are certainly ways almost all supervisors can implement or improve upon accountability in this virtual, or hybrid-virtual environment. Supervisors should take note of when employees send emails. To the extent employees are sending emails outside of their duty hours, supervisors should investigate and discuss with the employee. An employee should be advised that this practice cannot continue without authorization and approval. It is more important than ever for commanders and supervisors to ensure that their employees, particularly their non-exempt employees, are adhering to the time and attendance policies in place as well as all FLSA guidelines.
Conclusion
Fair Labor Standards Act grievances are a threat to mission readiness. Multi-million dollar settlements paid from current operating funds compromise the Army’s ability to fund budgeted trainings and operations. Fortunately, commanders and supervisors can prevent, or at the least significantly mitigate, FLSA grievances through aggressive best practices within their organizations.
The FLSA is a nuanced law. Managers must understand OPM’s implementing regulations and institute best practices within their organizations to prevent FLSA grievances. With a little effort, supervisors and employees alike can happily pour themselves a “cup of ambition”100 along with Dolly Parton and ensure both that employees receive proper compensation and that the Army spends its resources on its planned missions. TAL
Ms. Talley is an attorney-advisor with Office of the Judge Advocate General, Labor and Employment Division, Fair Labor Standards Act Team at the Pentagon.
Notes
1. Dolly Parton, 9 to 5, on 9 to 5 and Odd Jobs (RCA Studios 1980).
2. U.S. Army, The Army People Strategy 2 (2019).
3. U.S. Dep’t of Def., 7000.14-R, DoD Financial Management Regulation vol. 2A, para. 2.1.2.1 (Oct. 2008) [hereinafter DoD FMR].
4. Katherine Blakeley, Ctr. Of Strategic and Budgetary Assessments, More Money on the Horizon? Analysis of the FY 2018 Defense Budget Request 37 (2017) (“The costs of pay and benefits for the Pentagon’s military and civilian personnel make up the single largest category of costs in the DoD budget.”).
5. Id. at 46 (“[A]s the largest Service with the least procurement funding, the Army devotes 37 percent of its overall budget to [the cost of military personnel pay and benefits (MILPERS)],” whereas MILPERS only account for 20 percent of the Air Force’s budget and 27 percent of the Navy’s budget.).
6. 3 DoD FMR, supra note 3, para. 081308 (defining a claim); 3 U.S. Gen. Acct. Off., Principles of Federal Appropriations Law 14-45 (3d ed. 2008) [hereinafter GAO Principles] (“For the Department of Defense and the military departments, claims payable from agency funds are paid from Operation and Maintenance (O&M) appropriations in accordance with 10 U.S.C. § 2732.”).
7. 29 U.S.C. §§ 201–219 (2020).
8. LiUNA, NFFE and AFGE Local 3601 Win $80 Million Fair Labor Standards Act Union Grievance for Indian Health Service Employees, LiUNA! Feel the Power (May 27, 2015), https://www.liuna.org/news/story/liuna-nffe-and-afge-local-3601-win-80-million-fair-labor-standards-act-union-grievance [hereinafter LiUNA].
9. American Federation of Government Employees (AFGE) v. Environmental Protection Agency, Snider & Assocs., LLC, https://www.sniderlaw.com/case_results_class/american-federation-of-government-employees-afge-v-environmental -protection-agency (last visited June 16, 2023).
10. Press Release, Nat’l Council of HUD Locals, HUD, AFGE Council 222 Settle Fair Labor Standards Act Case, (Mar. 6, 2008), http://afgecouncil222.com/E/mar62008flsasettle.pdf.
11. Email from Melissa Heindselman, Att’y/Fair Labor Standards Act (FLSA) Team Lead, Off. of the Judge Advoc. Gen. (OTJAG), to author (Dec. 15, 2020, 10:36 EST) (on file with author) [hereinafter December 2020 Heindselman Email]; Email from Melissa Heindselman, Att’y/Fair Labor Standards Act (FLSA) Team Lead, OTJAG, to author (June 14, 2023, 10:34 EST) (on file with author). Grievances are pending at the following Army installations: Fort Sill, Aberdeen Proving Ground, Red River Army Depot, Redstone Arsenal, White Sands Missile Range, Letterkenny Army Depot, Fort Stewart, and Fort Irwin. Id. Grievances are pending at the following U.S. Army Corps of Engineers districts: Walla Walla, Portland, and Baltimore. Id.
12. Id.
13. See Riva Parker, The FLSA Team Is Working, Army Law., 2020, no. 1, at 106, 107.
14. 29 U.S.C. §§ 201–219 (2020).
15. Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706 (1945) (“The legislative history of [the Act] shows an intent on the part of Congress to protect certain groups of the population from substandard wages and excessive hours which endangered the national health and well-being and the free flow of goods in interstate commerce.”). The Brooklyn Sav. Bank court also cites to the legislative debates, noting that “the prime purpose of [the Act] was to aid the unprotected, unorganized and lowest paid of the [N]ation’s working population.” Id. at 707 n.18.
16. See Lawrence E. Henke, Is the Fair Labor Standards Act Really Fair? Gov’t Abuse or Financial Necessity: An Analysis of the Fair Labor Standards Act 1974 Amendment—The 207(k) Exemption, 52 SMU L. Rev. 1847, 1851 (1999).
17. Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55 (codified as amended at 29 U.S.C. §§ 201–219).
18. D. Aaron Lacy, The Disenfranchisement of the Federal Employee: Why the Federal Government Does Not Follow the Fair Labor Standards Act, 15 St. Thomas L. Rev. 403, 408 (2002) (citing Fair Labor Standards Amendments of 1974, Pub. L. No. 93-259, 88 Stat. 55) (codified as amended at 29 U.S.C. § 207). In general, an agency must pay Title 5 overtime for work officially ordered or approved in “excess of 8 hours in a day or in excess of 40 hours in an administrative work week.” 5 C.F.R. § 550.111(a) (2023). Specific overtime rates depend on the exempt employee’s rate of basic pay. 5 U.S.C. § 5542(a)(1)–(2). This paper will not address the nuances of Title 5 overtime. However, it is worth noting that, prior to the 1974 Amendments, Federal employees received Title 5 overtime, and current Federal employees who are exempt from the Fair Labor Standards Act (FLSA) receive Title 5 overtime. Id. § 5542.
19. Databases, Tables & Calculators by Subject: Employment, U.S. Bureau of Lab. Stat., https://www.bls.gov/data/#employment (last visited May 15, 2023).
20. Regan C. Rowan, Solving the Bluish Collar Problem: An Analysis of the DOL’s Modernization of the Exemptions to the Fair Labor Standards Act, 7 U. Pa. J. Lab. & Emp. L. 119, 119 (2004) (noting that, historically, “white-collar” employees were generally exempted from the overtime protections provided by the FLSA because these individuals had decision-making authority, were closer to management, and received a livable wage). Now, the Office of Personnel Management (OPM) administers the FLSA for Federal employees. See 5 C.F.R. §§ 551.101–551.102 (2023). The OPM regulations state that a Federal agency must only designate an employee as exempt when the agency correctly determines that the employee’s position meets particular exemption criteria. See 5 C.F.R. §§ 551.201–551.202 (2023). Some examples of typically exempt employees in the Federal sector are executives (supervisors and managers); professionals (doctors and lawyers); and computer professionals (computer programmers and software engineers). See generally 5 C.F.R. §§ 551.205–551.210 (2023) (setting forth the categories of jobs that are exempt from the FLSA). This paper will not address exemption status determination, as that topic alone is worthy of extensive analysis. This paper starts with the premise that an employee is, in fact, non-exempt.
21. See 5 U.S.C. § 5541 and 5 C.F.R. § 550 (2023) for applicable rules for calculation of overtime for exempt employees.
22. 5 C.F.R. § 551.501(a) (2023).
23. See 5 C.F.R. §§ 551.101–551.102 (2023).
24. 5 C.F.R. § 551.401(a) (2023).
25. 5 C.F.R. § 551.401(a)(2) (2023).
26. 5 C.F.R. §§ 551.401, 551.501 (2023).
27. 5 C.F.R. § 551.104 (2023).
28. 5 C.F.R. § 550.112(a)(2) (2023); cf. 5 C.F.R. § 550.112(a)(1) (2023) (stating that “[a]n employee shall be compensated for every minute of regular overtime work” (emphasis added)). Suffered and permitted overtime work is captured in 5 C.F.R. § 550.112(a)(2) as irregular or occasional overtime work. By definition, suffered and permitted work is not scheduled and approved in advance, and, therefore, is not regular and is not compensated by the minute, but by quarter of an hour increment. See 5 C.F.R. § 550.112(a)(2) (2023).
29. 5 C.F.R. § 551.412 (2023).
30. 5 C.F.R. § 550.112(a) (2023).
31. Dunlop v. City Elec., Inc., 527 F.2d 394, 401 (5th Cir. 1976).
32. Steiner v. Mitchell, 350 U.S. 247, 256 (1956).
33. Id.
34. Id.
35. 5 C.F.R. § 550.112(b) (2023).
36. Id.
37. Id. § 550.112(b)(1)(i).
38. 5 C.F.R. § 550.501(a) (2023) (“An agency shall compensate an employee who is not exempt . . . for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee’s hourly regular rate of pay . . . .”).
39. Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 29 (2014).
40. Id. at 35.
41. Id.
42. 5 C.F.R. § 550.112(b)(2) (2023). Preliminary or postliminary activities are expressly prohibited from compensation under the FLSA. 29 U.S.C. § 254(a) (“[N]o employer shall be subject to any liability or punishment under the [FLSA] . . . on account of the failure of such employer to pay an employee minimum wages, or to pay an employee overtime compensation, for or on account of any of the following activities of such an employee . . . (2) activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.”).
43. 5 C.F.R. § 550.112(b)(2) (2023).
44. Dunlop v. City Elec., Inc., 527 F.2d 394, 398-99 (5th Cir. 1976).
45. Lindow v. United States, 738 F.2d 1057, 1061 (9th Cir. 1984).
46. Id.
47. IBP, Inc. v. Alvarez, 546 U.S. 21, 30 (2005).
48. Steiner v. Mitchell, 350 U.S. 247, 248 (1956); IBP, Inc., 546 U.S. at 30.
49. U.S. Dep’t of Just., Fed. Bureau of Prisons, Fed. Corr. Inst., Allenwood, Pa. and Am. Fed’n of Gov’t Emps., Local 4047, Council of Prison Locals, Council 33, 65 F.L.R.A. 996, 1000 (2011).
50. IBP, Inc., 546 U.S. at 40.
51. 5 C.F.R. § 551.412(a)(1) (2023); Bull v. United States, 68 Fed. Cl. 212, 226 (2005) (citing 5 C.F.R. § 551.412(a)(1)) (“OPM limits the application of the de minimis doctrine to periods of 10 minutes or less per day.”).
52. 5 C.F.R. §§ 551.501, 551.521 (2023).
53. 5 C.F.R. § 551.104 (2023).
54. See supra Sections titled “Principal Activities,” “Preparatory and Concluding Activities,” and “Preliminary and Postliminary Activities.”
55. 5 C.F.R. § 551.104 (2023).
56. Hertz v. Woodbury Cnty., 566 F.3d 775, 782 (8th Cir. 2009) (finding that it is not reasonable to require an employer to “weed through non-payroll . . . records to determine whether or not its employees were working beyond their scheduled hours”). Cf. Brennan v. Gen. Motors Acceptance Corp., 482 F.2d 825, 827 (5th Cir. 1973) (reasoning that the employer should have known about the overtime worked because in the several years prior to the litigation, the employees had consistently been working thirteen hours of overtime each week); Reich v. Ala. Dept. of Conserv. & Natural Res., 28 F.3d 1076, 1083–84 (11th Cir. 1994) (finding constructive knowledge of overtime worked when supervisors were “specifically instructed” to “closely monitor” hours to ensure compliance with policy).
57. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87 (1946); Soc. Sec. Admin. and Am. Fed’n of Gov’t Emps. Local 3512, 23 F.L.R.A. 325, 325 (1986) (holding that the supervisor “did not request that she work overtime and the grievant did not seek permission of her supervisor to work overtime”).
58. NFFE Local 858 and Dep’t of Agric., Risk Mgmt. Agency, 66 F.L.R.A. 152, 154–55 (2011).
59. Id. at 153.
60. Hertz, 566 F.3d at 781–82.
61. Id. at 783.
62. Id. (“We do not foreclose the possibility that another case may lend itself to a finding that access to records would provide constructive knowledge of unpaid overtime work.”).
63. See, e.g., Gallagher v. Lackawanna Cnty., 2010 U.S. Dist. LEXIS 31841, at *1 (M.D. Pa. Mar. 31, 2010) (wherein corrections officers alleged that they should have been compensated for their attendance at a mandatory pre-shift meeting each day).
64. See, e.g., White v. Baptist Mem’l Health Care Corp., 699 F.3d 869, 872 (6th Cir. 2012) (wherein a nurse alleged that she did not have a regularly scheduled meal break due to the nature of her job in providing patient care in the emergency department); U.S. Dep’t of Just., Fed. Bureau of Prisons, Fed. Corr. Inst. and Am. Fed’n of Gov’t Emps. Local 1570, 68 F.L.R.A. 863, 863 (2015).
The prison is staffed in three shifts—morning, day, and evening—by officers who work in the Agency’s correctional-services department. The morning shift is from 12:00 a.m. to 8:00 a.m.; the day shift is from 7:45 a.m. to 4:15 p.m.; the evening shift is from 4:00 p.m. to 12:00 a.m. Although officers on each shift ‘follow . . . the same procedures,’ the morning and evening shifts do not have a fifteen-minute overlap—the evening shift ends at, and the morning shift begins at, 12:00 a.m.
68 F.L.R.A. at 863. Therefore, the union alleged that the agency violated the FLSA by requiring the officers in the morning and evening shifts to perform preparatory or concluding activities without proper compensation.
65. See Gen. Servs. Admin. and Am. Fed’n of Gov’t Emps. Council 236, 37 F.L.R.A. 481, 484–85 (1990); U.S. Dep’t of Just., Med. Ctr. for Fed. Prisoners and Am. Fed’n of Gov’t Emps. Local 1612, 11 F.L.R.A. 29, 30 (1983); U.S. Dep’t of Just., Fed. Bureau of Prisons and Am. Fed’n of Gov’t Emps. Local 919, 59 F.L.R.A. 593, 600 (2004).
66. See, e.g., Am. Fed’n of Gov’t Emps. Local 2145 and U.S. Dep’t of Veterans Affs. Med. Ctr., 70 F.L.R.A. 873, 873 (2018) (discussing how the union alleged that clinical social workers were required to work past the end of their shift if a patient arrived near the end of the employee’s tour of duty if it was necessary to provide needed care, such as an urgent mental-health issue). It is worth noting the case reaffirmed that these particular employees should be FLSA-exempt due to the fact that they are covered by the Federal Employees Pay Act. See id. Nevertheless, the proposition that medical personnel can be caught in these types of situations remains.
67. December 2020 Heindselman Email, supra note 11.
68. Parker, supra note 13, at 106.
69. See 2A DoD FMR, supra note 3, para. 2.1.2.1.
70. 3 DoD FMR, supra note 3, para. 081308; see also 3 GAO Principles, supra note 6, at 14-45.
71. Microsoft Teams Interview with Brigadier General Omuso D. George, Director of Resource Management, G8, U.S. Army Installation Management Command (Nov. 3, 2020) [hereinafter George Interview].
72. See, e.g., LiUNA, supra note 8.
73. George Interview, supra note 71.
74. The best practices suggested here are based on the first-hand and collective experiences of the author with input from the OTJAG’s FLSA team. The FLSA team currently consists of five attorneys whose practice is to defend against FLSA group grievances.
75. Of course, labor attorneys should proceed with caution in recommending a change like this and consider the facts and history of a particular office or directorate. An analysis as to whether a decision such as this could change working conditions or even conditions of employment may be necessary. Proper steps to comply with any notification to the union as well as any impact and implementation bargaining may be necessary. Those issues are outside of the scope of this paper but are worth noting for the practitioner’s awareness.
76. See Lindow v. United States, 738 F.2d 1057, 1061 n.3 (9th Cir. 1984) (“If, however, the employees could have performed the work during regular hours and the employer did not pressure the employees to work overtime, an instruction relieves the employer from liability for overtime compensation.”).
77. Id.
78. See Hamilton v. U.S. Postal Serv., 71 M.S.P.R. 547, 556 (1996) (“An agency may prove the charge by establishing that proper instructions were given to an employee and that the employee failed to follow them, without regard to whether the failure was intentional or unintentional.”).
79. See supra note 76 and accompanying text.
80. U.S. Dep’t of Just. Fed. Bureau of Prisons, U.S. Penitentiary, Bryan, Tex. and Am. Fed’n of Gov’t Emps. Local 3978, 70 F.L.R.A. 707, 707 (2018) (overturning an arbitrator’s award that found the information exchanges between outgoing and incoming shifts were not principal activities, and even if they were, this failed to meet the ten-minute rule for compensation under the FLSA).
81. Gen. Servs. Admin. and Am. Fed’n of Gov’t Emps. Council 236, 37 F.L.R.A. 481, 484–85 (1990) (holding that for Federal protection officers, “the signing in and out of weapons and other equipment at a controlled equipment room constitutes compensable preparatory and concluding activities”).
82. U.S. Dep’t of Just., Med. Ctr. for Fed. Prisoners and Am. Fed’n of Gov’t Emps. Local 1612, 11 F.L.R.A. 29, 30 (1983) (finding that both the time spent checking the equipment out and the time spent traveling to and from the designated location constituted hours of work).
83. See U.S. Dep’t of Just., Fed. Bureau of Prisons and Am. Fed’n of Gov’t Emps. Local 919, 59 F.L.R.A. 593, 600 (2004) (discussing the agency’s human resource management manual, which stated that “employees who pick-up equipment at the control center, shall have their shifts scheduled to include reasonable time to travel from the control center to their assigned duty post and return (at the end of the shift)”).
84. Id.
85. Hertz v. Woodbury Cnty., 566 F.3d 775, 781 (8th Cir. 2009).
86. Telework Enhancement Act of 2010, Pub. L. No. 111-292, 124 Stat. 3165 (2010) (codified as amended at 5 U.S.C. §§ 6501–6506).
87. See Anjali Patel, Prevent FLSA Violations Involving Teleworkers (July 27, 2011) (internal cyberFEDS publication) (on file with author).
88. U.S. Off. of Pers. Mgmt., 2021 Guide to Telework and Remote Work in the Federal Government 18 (2021).
89. Memorandum from Off. of Mgmt. and Budget, Exec. Off. of the President to the Heads of Dep’ts and Agencies, subject: Updated Guidance for the National Capital Region on Telework Flexibilities in Response to Coronavirus (15 Mar. 2020).
90. Memorandum from U.S. Off. of Pers. Mgmt. to the Heads of Exec. Dep’ts and Agencies, subject: Coronavirus Disease 2019 (COVID-19): Additional Guidance, encl. at 2 (7 Mar. 2020).
91. Memorandum from U.S. Off. of Pers. Mgmt. to Chief Human Capital Officers, subject: Removal of the COVID-19 Governmentwide Operating Status Announcement (Apr. 18, 2023).
92. Id.
93. Id.
94. 5 C.F.R. § 531.605(d) (2022).
95. Telephone Interview with Lyndsay Lujan, Attorney/FLSA Team, OTJAG (Dec. 15, 2020) [hereinafter Lujan Interview].
96. Id. See generally What is an IT ticketing system?, servicenow, https://www.servicenow.com/products/itsm/what-is-it-ticketing-system.html (last visited June 16, 2023).
Effective IT ticketing systems incorporate many different components. These may include the following: A centralized requests repository; 24/7 accessibility; Ticket creation via web, mobile, virtual agents, service portals, and more; Automated responses and updates; Communications tracking between employees and agents; Employee visibility into status of requests; Data for analytics and reporting.” In sum, ticketing systems provide “real-time data for reporting and analytics.
Id.
97. Lujan Interview, supra note 95.
98. Id.
99. Id. This is a fairly new practice in response to suffered and permitted overtime concerns. Id.
100. Parton, supra note 1.