Tropical Storm Barry and the FLSA

UPDATE 3 (8/1/19) There is still some discussion of pay for time worked during the State of Emergency for Hurricane Barry. Here is my best interpretation of the circumstances as they exist today:

  • What time is compensable time (the time you are paid for) is determined by the application of the FLSA (Fair Labor Standards Act).
  • Whether or not an officer gets paid for standby time is fact dependent and has to be examined on a case by case basis to determine if time is compensable time. What might be compensable time for one officer may not be compensable time for another officer.
  • Compensable time for a non-exempt employee must be paid and paid in a timely fashion. We have been told that FLSA payments are, in fact, being made in a timely fashion.
  • It is important to note that some employees are exempt employees. That is to say, they are not covered by the provisions of FLSA. So, just because the FLSA would indicate time was compensable for a non-exempt employee does not mean it is compensable time for an exempt employee.
  • There is also New Orleans Civil Service Rule IV, Section 11.1 which indicates that if the mayor declares an emergency and an employee has to work when everyone else has been sent home, then those employees who have to work should be given another day off during the pay cycle. If it is not possible to give the employee another day off, then all hours worked are paid at 1.5x. However, this is not an FLSA requirement.
  • The FOP Crescent City Lodge will be keeping an eye on the payments to make sure payments are made timely and correctly.

UPDATE 2 (7/13/19): During the implementation of a crisis management plan, regular communication is crucial. As such, there are regular conference calls involving management from various departments and amongst leaders of those departments. So, there was a conference call at 1:00 this afternoon. One of the issues addressed was that all compensable time will be paid as such. As I noted below in my original version of this post, a crucial function of any emergency plan implementation is the identification of problem areas and discussion of ways to fix them up. Hurricane Barry (It did become a hurricane at some point, however short) was unique. Forecasters have become better at identifying these storms and better at creating accurate predictions. Barry, however, did not give anyone much advance notice. As such, plans which dictated the availability of certain assets at 48, 72, or 96 hours had to be revised as quickly as possible and re-implemented. Officers may have noticed some of those things, but without an overall view of the plan, it is difficult to make realistic assessments of how the plans were implemented. Over the course of 7/23/19, I spoke with Chief Noel more than once. Chief Noel has assured me that before any decision was made with regard to holding employees over that an analysis was made of whether it was affordable to do so. Once it was determined they could afford the extra pay, it was determined, yet again, that it was still necessary and/or worth the extra expense. Finally, Chief Noel assured me that Supt. Ferguson is committed to ensuring the NOPD makes payment to its employees for any compensable time accrued during the emergency. Again, the law about what time is compensable as per the FLSA is below. Officers will benefit themselves by learning what constitutes compensable time and how that fits into the FLSA 7(k) overtime sceme for law enforcement.

UPDATE 1 (7/13/19): I think it is important to point out that we have no reason to believe that any compensable time will not be compensated. That’s why it is important to learn what is compensable time and what is not. The law can be found below.

As you are aware New Orleans is making preparations for the landfall of a tropical storm, The National Hurricane Center is predicting that Tropical Storm Barry will make landfall along the southern coast of Louisiana relatively soon.

In addition, each tropical weather event gives the #NOPD a chance to implement emergency plans, look for weaknesses in those plans, and make adjustments. It never fails to take a number of people by surprise.

The next thing that comes up, inevitably, is that NOPD is not letting employees go home and they are not going to pay us. If you were thinking about calling and asking how they can get away with that, you are not the first. If the Department issues orders which interfere with an employee’s ability to spend off time however they want, it is compensable. There is more of a discussion on this topic below. It has to be more than “you have to answer the phone.” It also has to be more than “you can’t drink alcohol.” It could be those things if they were combined in some way that increases the restrictions on how you spend your free time. As you could imagine – it could be different on a case by case basis.

Clicking here will bring you to the Code of Federal Regulations which govern the application of the Fair Labor Standards Act (FLSA) for employees of state and local governments. That includes NOPD police officers. If you scroll on down to subpart C Fire Protection and Law Enforcement Employees of Public Agencies. Fact Sheet 22 is a little shorter and more general, but not necessarily better.

If you scroll down just a little further, you will see 553.220, “Tour of Duty” defined. Below that is what we are currently interested in. That describes what hours you work that you have to be compensated for – that you have to be paid for.

“Tour of Duty”

(a) The term “tour of duty” is a unique concept applicable only to employees for whom the section 7(k) exemption is claimed. This term, as used in section 7(k), means the period of time during which an employee is considered to be on duty for purposes of determining compensable hours. It may be a scheduled or unscheduled period. Such periods include “shifts” assigned to employees often days in advance of the performance of the work. Scheduled periods also include time spent in work outside the “shift” which the public agency employer assigns. For example, a police officer may be assigned to crowd control during a parade or other special event outside of his or her shift.

(b) Unscheduled periods include time spent in court by police officers, time spent handling emergency situations, and time spent working after a shift to complete an assignment. Such time must be included in the compensable tour of duty even though the specific work performed may not have been assigned in advance.

(c) The tour of duty does not include time spent working for a separate and independent employer in certain types of special details as provided in § 553.227. The tour of duty does not include time spent working on an occasional or sporadic and part-time basis in a different capacity from the regular work as provided in § 553.30. The tour of duty does not include time spent substituting for other employees by mutual agreement as specified in § 553.31.

(d) The tour of duty does not include time spent in volunteer firefighting or law enforcement activities performed for a different jurisdiction, even where such activities take place under the terms of a mutual aid agreement in the jurisdiction in which the employee is employed. (See § 553.105.)

§ 553.221 – Compensable Hours of Work

(a) The general rules on compensable hours of work are set forth in 29 CFR part 785 which is applicable to employees for whom the section 7(k) exemption is claimed. Special rules for sleep time (§ 553.222) apply to both law enforcement and employees in fire protection activities for whom the section 7(k) exemption is claimed. Also, special rules for mealtime apply in the case of employees in fire protection activities (§ 553.223). Part 785 does not discuss the special provisions that apply to State and local government workers with respect to the treatment of substitution, special details for a separate and independent employer, early relief, and work performed on an occasional or sporadic and part-time basis, all of which are covered in this subpart.

(b) Compensable hours of work generally include all of the time during which an employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities which are an integral part of the employee’s principal activity or which are closely related to the performance of the principal activity, such as attending roll call, writing up and completing tickets or reports, and washing and reracking fire hoses.

(c) Time spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits also constitutes compensable hours of work. For example, where a police station must be evacuated because of an electrical failure and the employees are expected to remain in the vicinity and return to work after the emergency has passed, the entire time spent away from the premises is compensable. The employees in this example cannot use the time for their personal pursuits.

(d) An employee who is not required to remain on the employer’s premises but is merely required to leave word at home or with company officials where he or she may be reached is not working while on call. Time spent at home on call may or may not be compensable depending on whether the restrictions placed on the employee preclude using the time for personal pursuits. Where, for example, an employee in fire protection activities has returned home after the shift, with the understanding that he or she is expected to return to work in the event of an emergency in the night, such time spent at home is normally not compensable. On the other hand, where the conditions placed on the employee’s activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on call is compensable.

(e) Normal home to work travel is not compensable, even where the employee is expected to report to work at a location away from the location of the employer’s premises.

(f) A police officer, who has completed his or her tour of duty and who is given a patrol car to drive home and use on personal business, is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls. Of course, the time spent in responding to such calls is compensable.

(g) The fact that employees cannot return home after work does not necessarily mean that they continue on duty after their shift. For example, employees in fire protection activities working on a forest fire may be transported to a camp after their shift in order to rest and eat a meal. As a practical matter, the employee in fire protection activities may be precluded from going to their homes because of the distance of the fire from
their residences.

[52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987, as amended at 76 FR 18857, Apr. 5, 2011; 82 FR 2229, Jan. 9, 2017]

§ 553.222 – Sleep time.

(a) Where a public employer elects to pay overtime compensation to employees in fire protection activities and/or law enforcement personnel in accordance with section 7(a)(1) of the Act, the public agency may exclude sleep time from hours worked if all the conditions in § 785.22 of this title are met.

(b) Where the employer has elected to use the section 7(k) exemption, sleep time cannot be excluded from the compensable hours of work where
(1) The employee is on a tour of duty of less than 24 hours, which is the general rule applicable to all employees under § 785.21, and
(2) Where the employee is on a tour of duty of exactly 24 hours, which is a departure from the general rules in part 785.

(c) Sleep time can be excluded from compensable hours of work, however, in the case of police officers or employees in fire protection activities who are on a tour of duty of more than 24 hours, but only if there is an expressed or implied agreement between the employer and the employees to exclude such time. In the absence of such an agreement, the sleep time is compensable. In no event shall the time excluded as sleep time exceed 8 hours in a 24-hour period. If the sleep time is interrupted by a call to duty, the interruption must be counted as hours worked. If the sleep period is interrupted to such an extent that the employee cannot get a reasonable night’s sleep (which, for enforcement purposes means at least 5 hours), the entire
time must be counted as hours of work.

[52 FR 2032, Jan. 16, 1987, as amended at 76 FR 18857, Apr. 5, 2011]

More light reading on the FLSA – Scroll with to shifts fewer than 24 hours.

How to determine if on-call time is compensable.

More on whether sleeping is compensable time.

Time suffered or permitted to work.

All that being said, my guess is nobody had a hard time getting to work on time this morning due to the weather.

Be safe. Don’t drown any police cars. It is deeper than it looks.

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