Overtime Lawyer Blog

Police officers are not entitled to pay under the FLSA for time spent putting on and taking off their uniforms. According to the 9th Circuit Court of Appeals, time spent ”donning and doffing” uniforms doesn’t entitle the officers to pay if they’re not required to change at the workplace and they have the option to change at home Bamonte et al. v. City of Mesa, No. 08-16206, 2010 WL 1131492 (9th Cir. Mar. 25, 2010).

Under the FLSA, activities, which are an “integral and indispensable part” of an employee’s workday, are compensable. Here, police officers filed a claim against the City of Mesa for time spent changing into their uniforms at the police station.
In determining whether the officers were entitled to compensation, the court focused primarily on the location where the changing occurred. The court cited a Department of Labor memorandum that indicated “donning and doffing of required gear is only considered part of the work day where the job mandates that the changing takes place on the employer’s premises.”

Here, because the police officers were not required to change at the station but have the option of changing at home, the 9th circuit determined that the police officers were not entitled to compensation.

Further, the court noted the uniforms the officers were changing into were “generic protective gear” and not specific uniforms designed for the employer’s benefit.

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Many college students look forward to the summer as an opportunity to gain experience in the work place before getting their first “real job.” One way to do this is to be hired as an unpaid intern at a company. Interns agree to forego pay for in exchange for hands-on experience. However, recent reports have detailed employers taking advantage of interns as a source of free labor.

In order to provide guidance regarding this growing problem, the Department of Labor has just issued a fact sheet detailing what constitutes an internship and when it is fair not to pay interns.

To qualify as an unpaid internship the following criteria must be met:

• The training must be similar to that received in an educational environment
• The experience is for the benefit of the intern
• The intern isn’t taking the place of regular employees
• The employer isn’t deriving an immediate benefit from the intern, and may in fact be slightly burdened
• The intern is not entitled to a job at the end of the internship
• The intern understands that he or she is not entitled to compensation

In most situations, internships at “for-profit” private sector jobs are considered “employment” and subject to the Fair Labor Standards Act (FLSA). Hence, if you work at a Georgia company as intern and each of the 6 factors are not present, you may be entitled to minimum wages and overtime. Under the FLSA, Georgia workers are entitled to $6.55/hour and overtime at a rate of one and one-half your regular rate of pay for all hours in excess of 40 hours in any workweek.

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A recent 11th Circuit case has determined that employees who spend time on both firefighting and law enforcement duties are entitled to overtime based on how they divide their time on each duty.

Generally, under the FLSA, employers must pay employees overtime at the rate of time-and-a-half times their regular rate of pay for all hours in excess of 40 in any work week. However, public agencies engaged in “fire protection” and “law enforcement” are subject to different rules. Under federal law, firefighters must work up to 212 hours in a 28-day period, whereas law enforcement employees need only work 171 hours. (29 U.S.C. Sec. 207(k)).

In Creemens v. City of Montgomery, 661 F.Supp.2d 1253 (M.D. Ala. 2009) the 11th U.S. Circuit Court of Appeals reviewed whether a 1999 amendment which specifically defined “fire protection” and “law enforcement” activities rendered a longstanding Department of Labor regulation obsolete. The regulation, 29 C.F.R. Sec. 553.213(b), provides that for those employees performing both fire protection and law enforcement activities, overtime is determined by how the employee spends the majority of his work time during the work period.

Last year, the lower court determined that the previous regulation was no longer valid. Cremeens v. City of Montgomery, 661 F.Supp.2d 1253 (M.D. Ala. 2009). However, earlier this month the 11th Circuit reversed this decision reasoning that the new amendment simply defined what constitutes “fire protection” and “law enforcement activities,” but didn’t impact how overtime law was applied to these job categories. As such, no conflict exists between the amendment and the regulation. Hence in this case, determining if the arson investigators are entitled to overtime, and how much, depends on how they spent the majority of their time during the pay period.

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A recent opinion issued by the Department of Labor (DOL) determined that mortgage loan officers do not qualify as bona fide administrative employees exempt under section 13(a)(1) of the Fair Labor Standards Act (FLSA), 29 U.S.C. Sec. 213(a)(1). As a result, they are entitled to receive overtime pay, typically one and one half times their regular rate of pay for all hours worked over 40 hours in any workweek.

The DOL issued its opinion after reviewing whether a mortgage loan officer was “exempt” based on the 3-part test set forth by Federal Regulations. This test asks the following questions:
1) Is the employee paid more than $455 a week?
2) Is the employee’s “primary duty the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers? and
3) Does the employee’s primary duty include the exercise of discretion and independent judgment with respect to matters of significance? 29 C.F.R. Sec. 541.200.

In considering the status of mortgage loan officers, the DOL focused primarily on the second question – are mortgage loan officer’s duties are directly related to the management or general business operations of the company?

The DOL determined that a mortgage loan officer’s main job function is sales – each action that they take such as analyzing financial data, is in furtherance of making a sale. Determining whether a customer qualifies for a mortgage loan and the benefits of different types of loan products, relates to the sale of a product, for which the mortgage broker or loan officer receives a commission. These actions are not part of the internal operation of the company – they are not servicing the company itself or providing advice to the company. Rather, they are selling a product and “fall squarely on the production (non-exempt) side of the business.” Further, to the extent mortgage loan officers provide customers advice for their personal needs and not for “management of general business operation” these actions are not exempt.

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