International Association of
Chiefs of Police
www.theiacp.org
Legal Officers Section Annual Conference
Jody.Litchford@ci.orlando.fl.us
Chief Assistant
City Attorney
October, 2002
Return to List of Conference Papers
TITLE VII
Title VII of the
Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination
based on race, color, religion, sex, or national origin. The Age Discrimination in Employment Act of
1967 (ADEA), which protects individuals who are 40 years of age or older.
Under Title VII and the ADEA, it is illegal to discriminate in any aspect
of employment, including:
• hiring and firing;
• compensation, assignment, or
classification of employees;
• transfer, promotion, layoff, or recall;
• job advertisements;
• recruitment;
• testing;
• use of company facilities;
• training and apprenticeship programs;
• fringe benefits;
• pay, retirement plans, and disability
leave; or
• other terms and conditions of employment.
Other Discriminatory practices:
• harassment on the basis of race, color, religion, sex, national origin, disability, or age;
• retaliation against an individual for
filing a charge of discrimination, participating in an investigation, or
opposing discriminatory practices;
• employment decisions based on
stereotypes or assumptions about the abilities, traits, or performance of
individuals of a certain sex, race, age, religion, or ethnic group; and
• denying employment opportunities to a person because of marriage to, or
association with, an individual of a particular race, religion, or national
origin. Title II also prohibits
discrimination because of participation in schools or places of worship
associated with a particular racial, ethnic, or religious group.
Title VII's broad prohibitions against sex discrimination specifically cover:
Sexual Harassment - This includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender, including same sex harassment. (The "hostile environment" standard also applies to harassment on the bases of race, color, national origin, religion, age, and disability.)
Pregnancy Based Discrimination - Pregnancy, childbirth, and related medical conditions must be treated in the same way as other temporary illnesses or conditions.
National Railroad Passenger Corp. v. Morgan, 122 S.Ct. 2061 (2002) - A Title VII claim of discrete discriminatory or retaliatory act must be filed within the appropriate 180 or 300-day period, but a claim of hostile work environment will not be time barred if one relevant act falls within the filing period.
Campos v. City of Blue Springs, Missouri, 289 F.3d 5446 (8th Cir. 2002) – Plaintiff resigned from her position as a crisis counselor with the Blue Springs Police Department’s Youth Outreach Unit after being treated poorly by her supervisor who made verbal statements that she wanted a Christian in the job. Plaintiff awarded $79,20 plus $90,500 in fees and $11,800 in costs.
Duffy v. McPhillips, 276 F.3d 988 (8th Cir. 2002) – Minor shifts in work responsibilities of Deputy Chief Probation Officer did not constitute actionable adverse action. “[N]ot everything that makes an employee unhappy is an actionable adverse action.”
Spain v. City of Winston-Salem, 199 F.Supp.2d 354 (M.D.N.C. 2002) – Three internal affairs investigations against Plaintiff, pending at the time of her resignation, amount neither to adverse employment actions sufficient to establish sexual discrimination nor to constructive discharge.
MacLean v. City of St. Petersburg, 194 F.Supp.2d 1290 (M.D. Fla. 2002) - Initial denial of overtime pay (subsequently granted) and refusal to allow employee to withdraw resignation did not constitute adverse employment action for purpose of Title VII case. Additionally addressed First Amendment claims holding that testimony adverse to City in police officers’ pension case not public speech.
Hilt-Dyson v. City of Chicago, 282 F.3d 456 (7th Cir. 2002) – Male lieutenant’s touching of female officer’s back and shoulder on two occasions and a negative evaluation of her uniform during a routine uniform inspection did not constitute either sexual harassment nor adverse employment action. Taken separately or together, incidents were not severe or pervasive.
Longstreet v. Illinois Department of Corrections, 276 F.3d 379 (7th Cir. 2002) – Plaintiff sought damages from her employer based on two acts of crude behavior by co-workers, at least one of whom had been previously disciplined for harassment. The Court found that simply the failure of previous discipline to deter future acts is not a basis for liability. Moreover, the Court held that negative performance evaluations and being required to substantiate her illness-related absences did not constitute adverse employment action.
Durkin v. City of Chicago, 199 F.Supp.2d 836 (N.D.Ill. 2002) – A single incident of indecent exposure by a classmate occurring at the training academy was not sufficient to constitute sexual harassment of a female police trainee.
Griffin v. City of Opa-Locka, 261 F.3d 1295 (11th Cir. 2001) - City’s tolerance of gross sexual harassment, its failure to take remedial action despite actual and constructive knowledge of the problem and lack of any sexual harassment policy or complaint procedure constitute “policy or custom” of ignoring or tolerating sexual harassment sufficient to subject it to liability under s. 1983 (upholding $500,000 award).
Walton v. Johnson & Johnson Services, Inc., 203 F.Supp.2d 1312, 2002 U.S. Dist. Lexis 9741, 89 FEP Cases (BNA) 55 (M.D. Fla. 2002) - Existence of sexual harassment policy defining and prohibiting harassment, including identification of alternatives to reporting misconduct that involves supervisors, along with evidence that an annual letter regarding sexual harassment in the workplace, sent to all employees, sufficient to establish “Ellerth/Faragher” defense, relieving employer of liability.
Samedi v. Miami-Dade County, 206 F.Supp.2d 1213, 2002 U.S. Dist. Lexis 16333 (S.D. Fla. 2002) - County, which provides sexual harassment training to supervisors, posts its policy with complaint procedure on a public bulleting board and has a separate department to receive and investigate complaints established “Ellerth/Faragher” defense (notwithstanding Plaintiff’s allegations that she had never seen policy and that English was not her primary language and the policy was not posted in foreign languages).
Escalante v. IBP Inc., 199 F.Supp.2d 1093 (D. Kan. 2002) - Employer failed to establish “Ellerth/Faragher” defense where policy provided only one person to report discrimination claims to, that person was located in another state, was only accessible by telephone number (and the policy did not state the hours or days of availability) and the policy did not address any mechanism for supervisors to report complaints by employees.
Spina v. Forest Preserve District of Cook County, 207 F.Supp.2d 764 (N.D.Ill. 2002) – Plaintiff, a police officer for the Forest Preserve District, was assigned as the first female in a particular area. She alleged that she was subject to numerous acts of harassment. The court found that the defendants failed to have in place procedures for preventing and addressing sexual harassment and failed to take appropriate measures to remedy the harassment once it was brought to its attention and directed a verdict in Plaintiff’s favor (upheld on appeal with a remittitur of the $3 million jury verdict to $300,000).
Millbrook v. IBP, Inc., No. 01-1189, 280 F.3d 1169, 2002 U.S. App. Lexis 2597, 88 FEP Cases (BNA) 297 (7th Cir. 2002) – Reversed jury finding of racial discrimination in promotion, adopting standards followed by the 2d, 10th, 11th and D.C. circuits, finding that “[h]iring decisions are often difficult and sometimes require companies to make close calls, but those decisions are for the employer to make—not the court and not the jury—unless there is evidence of illegal discrimination.” “Whether the employer’s decision was the correct one, or the fair one, or the best one is not a question within the jury’s province to decide.”
Cotter v. City of Boston, 193 F.Supp.2d 323 (D. Mass. 2002) – Court upheld race-based selection criteria in promotional process for rank of sergeant. Applying a strict scrutiny analysis, the Court held that a desire for diversity to assist in operational objectives did not constitute a compelling interest, but that in this case, the department was able to justify its promotional decisions based on a compelling interest in remedying past discrimination.
Reynolds v. City of Chicago, 296 F.3d 524 (7th Cir. 2002) – Upheld the affirmative-action promotions of black and female officers to the ranks of lieutenant and captain based on remedying past discrimination. Also upheld the affirmative-action promotion of one Hispanic officer based on nonremedial operational justifications.
Cloud v. Chicago, No. #88 CV 3773, 2002 U.S. Dist. Lexis 9817 2002 WL 1160930 (N.D. Ill. 2002) - $2.3 million award to nine white firefighters passed over for promotion because of City’s race norming by using a formula to boost the scores of minority test takers. Previous jury award of $2.2 million to ten white firefighters with similar complaints.
Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) – Upheld state university law school’s use of race and ethnicity in admissions process, holding the objective of achieving a diverse student body to constitute a compelling state interest.
Jerelds v. City of Orlando, 194 F. Supp.2d 1305 (M.D. Fla. 2002) - African-American firefighters who brought unsuccessful discrimination suit against City ordered to pay over $250,000 in attorney’s fees.
Stinnett v. Iron Works Gym/Executive Health Spa, 301 F.3d 610 (7th Cir. 2002) – Male employee of Defendants allegation of sexual harassment failed based on his inability to prove that defendant had 15 or more employees for each day in 20 or more weeks of the current or preceding year. The task of proving the number of employees was insurmountable because, as the court noted, the “Executive Health Spa was a house of prostitution and criminal enterprises rarely keep accurate personnel or payroll records.” Summary judgment granted to defendants affirmed by court of appeals.
THE AMERICANS WITH DISABILITIES ACT
Excerpts from DOJ Guidance
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.
The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities.
Employment discrimination is prohibited against
"qualified individuals with disabilities." This includes applicants
for employment and employees. An individual is considered to have a
"disability" if s/he has a physical or mental impairment that
substantially limits one or more major life activities, has a record of such an
impairment, or is regarded as having such an impairment. Persons discriminated
against because they have a known association or relationship with an
individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons
who have impairments and that these must substantially limit major life
activities such as seeing, hearing, speaking, walking, breathing, performing
manual tasks, learning, caring for oneself, and working. An individual with
epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual
impairment, mental retardation, or a specific learning disability is covered,
but an individual with a minor, nonchronic condition of short duration, such as
a sprain, broken limb, or the flu, generally would not be covered.
The second part of the definition protecting individuals with a record of a
disability would cover, for example, a person who has recovered from cancer or
mental illness.
The third part of the definition protects individuals who are regarded as
having a substantially limiting impairment, even though they may not have such
an impairment. For example, this provision would protect a qualified individual
with a severe facial disfigurement from being denied employment because an
employer feared the "negative reactions" of customers or co-workers.
Title I of the Americans with Disabilities Act of 1990
(the "ADA") requires an employer to provide
reasonable accommodation to qualified individuals with disabilities who are
employees or applicants for employment, unless to do so would cause undue
hardship. "In general, an accommodation is any change in the work
environment or in the way things are customarily done that enables an
individual with a disability to enjoy equal employment opportunities."
There are three categories of "reasonable accommodations":
"(i) modifications or adjustments
to a job application process that enable a qualified applicant
with a disability to be considered for the position such qualified applicant
desires; or
(ii) modifications or adjustments to
the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed,
that enable a qualified individual with a disability to perform the essential
functions of that position; or
(iii) modifications or adjustments that
enable a covered entity's employee with a disability to enjoy equal
benefits and privileges of employment as are enjoyed by its other
similarly situated employees without disabilities."
The duty to provide reasonable accommodation is a
fundamental statutory requirement because of the nature of discrimination faced
by individuals with disabilities. Although many individuals with disabilities
can apply for and perform jobs without any reasonable accommodations, there are
workplace barriers that keep others from performing jobs which they could do
with some form of accommodation. These barriers may be physical obstacles (such
as inaccessible facilities or equipment), or they may be procedures or rules (such
as rules concerning when work is performed, when breaks are taken, or how
essential or marginal functions are performed). Reasonable accommodation
removes workplace barriers for individuals with disabilities.
Reasonable accommodation is available to qualified
applicants and employees with disabilities. Reasonable accommodations must be
provided to qualified employees regardless of whether they work part-time or
full-time, or are considered "probationary." Generally, the
individual with a disability must inform the employer that an accommodation is
needed.
There are a number of possible reasonable accommodations
that an employer may have to provide in connection with modifications to the
work environment or adjustments in how and when a job is performed. These
include:
• making existing facilities accessible;
• job restructuring;
• part-time or modified work schedules;
• acquiring or modifying equipment;
• changing tests, training materials, or policies;
• providing qualified readers or interpreters; and
• reassignment to a vacant position.
There are several modifications or adjustments
that are not considered forms of reasonable accommodation. An employer
does not have to eliminate an essential function, i.e., a fundamental
duty of the position. This is because a person with a disability who is unable
to perform the essential functions, with or without reasonable accommodation,
is not a "qualified" individual with a disability within the meaning
of the ADA. Nor is an employer required to lower production
standards -- whether qualitative or quantitative -- that are applied uniformly
to employees with and without disabilities. However, an employer may have to
provide reasonable accommodation to enable an employee with a disability to
meet the production standard. While an employer is not required to eliminate an
essential function or lower a production standard, it may do so if it wishes.
An employer may not ask or require a job applicant to take a
medical examination before making a job offer. It cannot make any
pre-employment inquiry about a disability or the nature or severity of a
disability. An employer may, however, ask questions about the ability to
perform specific job functions and may, with certain limitations, ask an
individual with a disability to describe or demonstrate how s/he would perform
these functions.
For example, at the pre-offer stage, an employer may not ask:
An employer may require applicants to take a physical fitness test, but may not measure an applicant’s physiological or biological responses to performance or ask medical questions in conjunction with the testing.
An employer may condition a job offer on the satisfactory
result of a post-offer medical examination or medical inquiry if this is
required of all entering employees in the same job category. A post-offer
examination or inquiry does not have to be job-related and consistent with
business necessity.
However, if an individual is not hired because a post-offer medical examination
or inquiry reveals a disability, the reason(s) for not hiring must be job-related
and consistent with business necessity. The employer also must show that no
reasonable accommodation was available that would enable the individual to
perform the essential job functions, or that accommodation would impose an
undue hardship. A post-offer medical examination may disqualify an individual
if the employer can demonstrate that the individual would pose a "direct
threat" in the workplace (i.e., a significant risk of substantial harm to
the health or safety of the individual or others) that cannot be eliminated or
reduced below the direct threat level through reasonable accommodation. Such a
disqualification is job-related and consistent with business necessity. A
post-offer medical examination may not disqualify an individual with a disability
who is currently able to perform essential job functions because of speculation
that the disability may cause a risk of future injury.
Employees
After a person starts work, a medical examination or inquiry of an employee
must be job-related and consistent with business necessity. Employers may
conduct employee medical examinations where there is evidence of a job
performance or safety problem, examinations required by other Federal laws,
examinations to determine current fitness to perform a particular job, and
voluntary examinations that are part of employee health programs.
A police or fire department can require officers to report
when they are taking medications that could affect their ability to perform
essential functions. Similarly, police and fire departments can conduct
periodic medical examinations limited to determining whether officers are fit
to perform the essential functions of their jobs.
Information from all medical examinations and inquiries must be kept apart from
general personnel files as a separate, confidential medical record, available
only under limited conditions.
Tests for illegal use of drugs are not medical examinations under the ADA and
are not subject to the restrictions of such examinations.
Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (January 8, 2002) - U.S. Supreme Court held that carpal tunnel syndrome did not limit Plaintiff’s major life activity of performing manual tasks.
U.S. Airways Inc. v. Barnett, 122 S.Ct. 1516 (April 29, 2002) - The Court held that an employer could treat a unilaterally imposed seniority system that prohibited the filling of vacancies except on seniority as a bar to reassigning a disabled employee to that vacant position as a form of reasonable accommodation.
Chevron USA, Inc. v. Echazabal, 122 S.Ct. 2045 (June 10, 2002) - Under the ADA, an employer may impose, as a qualification standard, that the employee not constitute a “direct threat” to the health or safety of others in the workplace. The Supreme Court upheld the EEOC regulation which interpreted this as applying to threats to the health or safety of the employee (or applicant) as well.
-Reassignment
Maldonado v. Municipality of Ponce, 206 F.Supp. 198 (D.Puerto Rico) – Police officer who was injured while on National Guard duty returned to a short period of light duty assigned. He thereafter requested a permanent light duty position in the police department or elsewhere in the City as a “reasonable accommodation” under the ADA. Because of his lower back problems, Plaintiff was unable to perform patrol duties. The court held plaintiff unable to perform the essential functions of the job of police officer and further that the City had no obligation to create a job for him.
Willis v. Pacific Maritime Association, 236 F.3d 1160 (9th Cir. 2001) – Employer is not required to accommodate a worker with a disability if the accommodation would violate provisions of a collective bargaining agreement. Ninth circuit joined the majority of circuits in finding an accommodation which conflicts with the union contract per se unreasonable.
-Discipline
Wascura v. City of South Miami, 257 F.3d 1238 (S.D. Fla. 2001) - Summary Judgment to City upheld where City offered legitimate reasons to support the termination of City Clerk only months after she had advised City of her need to take time off to care for her son who had been diagnosed with a terminal illness.
Aldrup v. Caldera, 274 F.3d 282 (5th
Cir. 2001) – Plaintiff, a firefighter, after being terminated for
insubordination, sued alleging, among other things discrimination based on his
disability of “depression caused by the stress and anxiety of having to work
with certain employees.” The Court held
that such a condition would merely show the inability to perform a single job
at a specific location, and would not constitute a disability protected by the
ADA.
Fountain v. New York State Dept. of Correctional
Services, 190 F. Supp. 335 (N.D.N.Y. 2002) – Sick leave policy that allows
supervisors to require medical documentation, including a diagnosis for
absences as short as one day, violates the ADA.
Hernandez v. Hughes Missile Systems Company,
292 F.3d 1038 (9th Cir. 2002) – Employer’s unwritten policy against
rehiring former employees terminated for misconduct violates the ADA as applied
to rehabilitated drug addicts terminated based on a positive drug screen while
employed.
Soledad v. U.S. Dept. of Treasury, No.
00-51300, ___F.3d ___, 2002 U.S. App. Lexis 18710 (5th Cir. 2002) – Liability
may rest under the ADA for discrimination “because of” a disability, but under
section 504, liability will only rest if the discrimination was “solely because
of” the disability.
THE
FAMILY AND MEDICAL LEAVE ACT
Excerpts from the DOL
Guidelines
The FMLA entitles eligible
employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month
period for specified family and medical reasons. The employer may elect to use
the calendar year, a fixed 12-month leave or fiscal year, or a 12-month period
prior to or after the commencement of leave as the 12-month period.
FMLA
applies to all:
To
be eligible for FMLA benefits, an employee must:
(1)
work for a covered employer;
(2)
have worked for the employer for a total of 12 months;
(3)
have worked at least 1,250 hours over the previous 12 months; and
(4)
work at a location in the United States or in any territory or possession of
the United States where at least 50 employees are employed by the employer
within 75 miles.
A
covered employer must grant an eligible employee up to a total of 12 workweeks
of unpaid leave during any 12-month period for one or more of the
following reasons:
Spouses
employed by the same employer are jointly entitled to a combined total
of 12 work-weeks of family leave for the birth and care of the newborn child,
for placement of a child for adoption or foster care, and to care for a parent
who has a serious health condition.
Leave
for birth and care, or placement for adoption or foster care must conclude
within 12 months of the birth or placement.
Under
some circumstances, employees may take FMLA leave intermittently — which means
taking leave in blocks of time, or by reducing their normal weekly or daily
work schedule.
Also,
subject to certain conditions, employees or employers may choose to use
accrued paid leave (such as sick or vacation leave) to cover some or all
of the FMLA leave.
The
employer is responsible for designating if an employee's use of paid leave
counts as FMLA leave, based on information from the employee.
"Serious
health condition" means an illness, injury, impairment, or physical or
mental condition that involves either:
(1)
A health condition (including treatment therefor, or recovery therefrom)
lasting more than three consecutive days, and any subsequent treatment or
period of incapacity relating to the same condition, that also includes:
(2)
Pregnancy or prenatal care. A visit to the health care provider is not
necessary for each absence; or
(3)
A chronic serious health condition which continues over an extended period of
time, requires periodic visits to a health care provider, and may involve
occasional episodes of incapacity (e.g., asthma, diabetes). A visit to a health
care provider is not necessary for each absence; or
(4)
A permanent or long-term condition for which treatment may not be effective
(e.g., Alzheimer's, a severe stroke, terminal cancer). Only supervision by a
health care provider is required, rather than active treatment; or
(5)
Any absences to receive multiple treatments for restorative surgery or for a
condition which would likely result in a period of incapacity of more than
three days if not treated (e.g., chemotherapy or radiation treatments for
cancer).
A
covered employer is required to maintain group health insurance coverage for an
employee on FMLA leave whenever such insurance was provided before the leave
was taken and on the same terms as if the employee had continued to work. If
applicable, arrangements will need to be made for employees to pay their share
of health insurance premiums while on leave.
In
some instances, the employer may recover premiums it paid to maintain health
coverage for an employee who fails to return to work from FMLA leave.
Upon
return from FMLA leave, an employee must be restored to the employee's original
job, or to an equivalent job with equivalent pay, benefits, and other terms and
conditions of employment.
In
addition, an employee's use of FMLA leave cannot result in the loss of any
employment benefit that the employee earned or was entitled to before using
FMLA leave, nor be counted against the employee under a "no fault"
attendance policy.
Under
specified and limited circumstances where restoration to employment will cause
substantial and grievous economic injury to its operations, an employer may
refuse to reinstate certain highly-paid "key" employees after
using FMLA leave during which health coverage was maintained. In order to do
so, the employer must:
A
"key" employee is a salaried "eligible" employee who
is among the highest paid ten percent of employees within 75 miles of the work
site.
Employees
seeking to use FMLA leave are required to provide 30-day advance notice of the
need to take FMLA leave when the need is foreseeable and such notice is
practicable.
Employers
may also require employees to provide:
When
intermittent leave is needed to care for an immediate family member or the
employee's own illness, and is for planned medical treatment, the employee must
try to schedule treatment so as not to unduly disrupt the employer's operation.
Recent Cases
Ragsdale v. Wolverine World Wide, Inc., No. 00-6029, 122 S.Ct. 1155, 2002 U.S. Lexis 1936 (2002) - The U.S. Supreme Court held invalid a DOL regulation that provides that FMLA leave did not count toward the 12-week requirement until the employer so notifies the employee.
McBride v. Citgo Petroleum Corp., 281 F.
3d 1099 (10th Cir. 2002) – The Court held that “the FMLA does not
protect an employee from performance problems caused by the condition for which
FMLA leave is taken, nor does it require that an employee be given an
opportunity to show improved job performance when not ill.”
Smith v. BellSouth, 273 F.3d 1303 (11th Cir. 2001) - Former employee who is denied a job (rehire) can sue under the FMLA for retaliation.
Darby v. Bratch, 287 F.3d 673 (8th Cir. 2002) – Disciplinary action for use of unpaid leave and denial of promotional opportunities because of excessive absences issued to dispatcher who had requested FMLA for a thyroid condition created genuine issue of fact as to whether employer violated the FMLA.
THE FAIR LABOR STANDARDS ACT
Excerpts from the DOL Guidelines
The FLSA requires employers to:
Under
certain prescribed conditions, employees of State or local government agencies
may receive compensatory time off at a rate of not less than one and one-half
hours for each overtime hour worked, instead of cash overtime pay. Police and
fire fighters, emergency response personnel, and employees engaged in seasonal
activities may accrue up to 480 hours of comp time; all others, 240 hours.
Certain
employees in the following examples may be exempt from the overtime
requirements of the FLSA:
Special
Exemptions for Employees Engaged in Fire Protection and Law Enforcement
Activities:
Note: the FLSA does not
require:
·
vacation,
holiday, severance, or sick pay;
·
meal or
rest periods, holidays off, or vacations;
·
premium pay
for weekend or holiday work;
·
pay raises
or fringe benefits; and
·
a discharge
notice, reason for discharge, or immediate payment of final wages to terminated
employees.
Also, FLSA does not limit the
number of hours in a day or days in a week an employee may be required or
scheduled to work, including overtime hours, if the employee is at least 16
years old.
(a) Section 13(a)(1) of the Fair Labor Standards Act, as amended, exempts from the wage and hour provisions of the act ``any employee employed in a bona fide executive, administrative, or professional capacity…
29 C.F.R. 541.118
(a) An employee will be considered to be paid ``on a salary basis'' within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed. Subject to the exceptions provided below, the employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any workweek in which he performs no work. *** (5) Penalties imposed in good faith for infractions of safety rules of major significance will not affect the employee's salaried status. Safety rules of major significance include only those relating to the prevention of serious danger to the plant, or other employees, such as rules prohibiting smoking in explosive plants, oil refineries, and coal mines.
II. Training Time
29 C.F.R. 785.27
Attendance at lectures, meetings, training programs and similar activities need not be counted as working time if the following four criteria are met: (a) Attendance is outside of the employee's regular working hours; (b) Attendance is in fact voluntary; (c) The course, lecture, or meeting is not directly related to the employee's job; and (d) The employee does not perform any productive work during such
attendance.
29 C.F.R. 785.29
The training is directly related to the employee's job if it is designed to make the employee handle his job more effectively as distinguished from training him for another job, or to a new or additional skill. For example, a stenographer who is given a course in stenography is engaged in an activity to make her a better stenographer. Time spent in such a course given by the employer or under his auspices is hours worked. However, if the stenographer takes a course in bookkeeping, it may not be directly related to her job. Thus, the time she spends voluntarily in taking such a bookkeeping course, outside of regular working hours, need not be counted as working time. Where a training course is instituted for the bona fide purpose of preparing for advancement through upgrading the employee to a higher skill, and is not intended to make the employee more efficient in his present job, the training is not considered directly related to the employee's job even though the course incidentally improves his skill in doing his regular work.
III. Overnight Travel
29 C.F.R. 39
Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly worktime when it cuts across the employee's workday. The employee is simply substituting travel for other duties. The time is not only hours worked on regular working days during normal working hours but also during the corresponding hours on nonworking days. Thus, if an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday the travel time during these hours is worktime on Saturday and Sunday as well as on the other days. Regular meal period time is not counted. As an enforcement policy the Divisions will not consider as worktime that time spent in travel away from home outside of regular working hours as a passenger on
an airplane, train, boat, bus, or automobile.
29 C.F.R. 40
If an employee is offered public transporation but requests permission to drive his car instead, the employer may count as hours worked either the time spent driving the car or the time he would have had to count as hours worked during working hours if the employee had
used the public conveyance.
IV. Special Detail Assignments
29 C.F.R. 553.227
(d) The primary employer may facilitate the employment or affect the conditions of employment of such employees. For example, a police department may maintain a roster of officers who wish to perform such work. The department may also select the officers for special details from a list of those wishing to participate, negotiate their pay, and retain a fee for administrative expenses. The department may require that the separate and independent employer pay the fee for such services directly to the department, and establish procedures for the officers to receive their pay for the special details through the agency's payroll system. Finally, the department may require that the officers observe their normal standards of conduct during such details and take disciplinary action against those who fail to do so.
V.
Occasional or Sporadic
Work
29 C.F.R. 553.30 (a) Section 7(p)(2) of the FLSA provides that where State or local government employees, solely at their option, work occasionally or sporadically on a part-time basis for the same public agency in a different capacity from their regular employment, the hours worked in the different jobs shall not be combined for the purpose of determining overtime liability under the Act. (b) Occasional or sporadic. (1) The term occasional or sporadic means infrequent, irregular, or occurring in scattered instances. There may be an occasional need for additional resources in the delivery of certain types of public services which is at times best met by the part-time employment of an individual who is already a public employee. Where employees freely and solely at their own option enter into such activity, the total hours worked will not be combined for purposes of determining any overtime compensation due on the regular, primary job. However, in order to prevent overtime abuse, such hours worked are to be excluded from computing overtime compensation due only where the occasional or sporadic assignments are not within the same general occupationalcategory as the employee's regular work. (2) In order for an employee's occasional or sporadic work on a part-time basis to qualify for exemption under section 7(p)(2), the employee's decision to work in a different capacity must be made freely and without coercion, implicit or explicit, by the employer. An employer may suggest that an employee undertake another kind of work for the same unit of government when the need for assistance arises, but the employee must be free to refuse to perform such work without sanction and without being required to explain or justify the decision. (3) Typically, public recreation and park facilities, and stadiums or auditoriums utilize employees in occasional or sporadic work. Some of these employment activities are the taking of tickets, providing security for special events (e.g., concerts, sports events, and lectures), officiating at youth or other recreation and sports events, or engaging in food or beverage sales at special events, such as a county fair. Employment in such activity may be considered occasional or sporadic for regular employees of State or local government agencies even where the need can be anticipated because it recurs seasonally (e.g., a holiday concert at a city college, a program of scheduled sports events, or assistance by a city payroll clerk in processing returns at tax filing time). An activity does not fail to be occasional merely because it is recurring. In contrast, for example, if a parks department clerk, in addition to his or her regular job, also regularly works additional hours on a part-time basis (e.g., every week or every other week) at a public park food and beverage sales center operated by that agency, the additional work does not constitute intermittent and irregular employment and, therefore, the hours worked would be combined in computing any overtime compensation due. (c) Different capacity. (1) In order for employment in these occasional or sporadic activities not to be considered subject to the overtime requirements of section 7 of the FLSA, the regular government employment of the individual performing them must also be in a different capacity, i.e., it must not fall within the same general occupational category. (2) In general, the Administrator will consider the duties and other factors contained in the definitions of the 3-digit categories of occupations in the Dictionary of Occupational Titles (except in the case of public safety employees as discussed below in section (3)), as well as all the facts and circumstances in a particular case, in determining whether employment in a second capacity is substantially different from the regular employment. (3) For example, if a public park employee primarily engaged in playground maintenance also from time to time cleans an evening