In regard to what is new on the question of what constitutes "nominal compensation" that can be paid to be a volunteer, there are several recent Department of Labor (DOL) letters that adopt a 20 percent rule - that is, DOL will presume that the fee paid to a volunteer is nominal if the fee does not exceed 20 percent of what the agency would otherwise pay for a full-time person who performs the same service. See the DOL letters below outlining this position:

• FLSA 2006-28
• FLSA 2007-3NA
  

An employee is not permitted under the Fair Labor Standards Act (FLSA to volunteer to perform the same types of services he or she is paid to perform. See 29 U.S.C. §203(e)(4)(A)(ii); 29 C.F.R. §553.102. Clearly, here, the employee would be performing the "same type of service" when volunteering. It does not matter that the employee here is temporary. So, any "volunteer" hours would have to be considered hours worked and would have to be paid.

The MWA sets similar standards and has similar exemptions for Washington employers and employees. When there is a difference between the two laws, the municipality must comply with the most liberal law when viewed from the perspective of the employee.

For more information on this topic, see our Fair Labor Standards Act Web page.

There may be instances when travel from home to work is overtime. For example, if an employee who has gone home after completing his day's work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer's customers all time spent on such travel is working time. The Divisions are taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time.

This regulation seems to say that if the on-call employee has to travel back to his/her regular work place then compensation is not required. However, if an employee has to travel a "substantial distance" to sites other than his/her place of regular employment, then the travel time should be compensated. Unfortunately, there is no definition of what constitutes a "substantial distance."

The FLSA: The Public Employer's Guide states in 4.7:

While ordinary home-to-work travel need not be counted as hours worked, the home-to-work travel of an employee who has gone home after completing a day's work and who is subsequently called back to handle an emergency is generally counted as hours worked. However, time spent traveling to respond to an emergency call that occurs shortly before the regular work period is scheduled to begin probably need not be counted as hours worked, because the employee would have been required to report to work even if no emergency call had been made.

However, The Fair Labor Standards Act: A Public Sector Compliance Guide, Sec. IV at p. 14 provides:

LCF Practice Advisor:
. . . the DOL has expressly declined to formulate a general rule on the compensability of home-to-work travel for emergency calls. Employers should attempt to reach an agreement concerning this issue.

In light of these seemingly conflicting commentaries, the best practice would be for a city to establish a clear policy clarifying the times when on-call travel will be compensated. For example, compensation could be based on distance traveled, or be triggered by a certain number of call-back times within a one-month period.

However, a police officer could volunteer and perform work for the city or county so long as the duties of the volunteer position are entirely different from those of a police officer. For example, a police officer could volunteer to work as a referee at basketball games for a city or county basketball league and compensation would not be required under the FLSA.

For more information on this subject, see our Fair Labor Standards Act page.

The overtime rules for police officers and firefighters are different. For more information on this subject, see our Fair Labor Standards Act page.

Limits may be placed on the number of hours of comp time accumulated and the time by which it must be used. A sampling of comp time restrictions from other cities shows that 40 hours is a common limit on accumulated time. The range is from 24 to 160 hours. Limits on the time period for the use of comp time (or overtime is paid instead) include 30 days, 60 days, 12 months, and within the same pay period.

For purposes of this exemption, the number of law enforcement and fire protection employees are considered separately. For example, if a city employs fewer than five employees in fire protection activities but more than five employees in law enforcement activities, it may claim an exemption for the fire protection employees but not for the law enforcement employees. Part-time employees are counted in determining the number of public safety employees, but true volunteers are not. (It is important to remember that an exemption from the overtime requirements of the federal FLSA does not mean such police officers and fire fighters are exempt from state overtime laws).

The mere fact that an employee is paid on a salary basis does not alone qualify the employee as exempt. The exemptions are also based on the actual duties of the position (the job title alone does not determine whether the position is exempt or not). The FLSA regulations contain tests to determine if a specific position is exempt as an administrative, executive, or professional position.

A February 18, 1992 Department of Labor (DOL) administrative letter ruling, concerning a county detention officer (jailer) who wanted to volunteer as a reserve deputy sheriff, concluded that:

An individual employed as a detention officer is engaged in law enforcement activities (public safety) functions. Some duties performed by a detention officer (jailer) are similar to those performed by a deputy sheriff. Moreover, public safety employees taking any kind of security or safety function within the same local government are never considered to be employed in a 'different capacity.'

In light of the legislative history of the FLSA Amendments of 1985 wherein the Secretary of Labor was admonished to strictly interpret the term 'different capacity', we do not believe that the term 'same type of services' should be interpreted to allow a detention officer to volunteer as a deputy sheriff.

We believe that the same reasoning would apply to prohibit a paid municipal corrections officer from also serving as a volunteer reserve police officer for a city. Under the reasoning above, the mere fact that both positions are engaged in public safety and security functions would have them performing the "same type of service" for the city. As such, the corrections officer should not be permitted to volunteer as a reserve police officer.

There are a number of cases that discuss whether "on call" personnel provided with pagers must be compensated during "on call" time when they are waiting to be engaged to work. Generally, the courts have noted that pagers may be used to facilitate quick responses from "on call" employees. The primary case in the 9th Circuit Court of Appeals is Berry v. County of Sonoma, 30 F.3d 1174; 1994 U.S. App. LEXIS 18726 (6/26/94). According to the Berry case, a predominant factor in determining whether on-call waiting time is compensable is "the degree to which the employee is free to engage in personal activities." The proper inquiry is "whether [an employee] is so restricted during on-call hours as to be effectively engaged to wait." The requisite degree to which an employee must be free to engage in personal activities does not require that "the employee . . . have substantially the same flexibility or freedom as he would if not on call, else all or almost all on-call time would be working time, a proposition that the settled case law and the administrative guidelines clearly reject."

The Fourth Circuit Court of Appeals addressed this precise issue in Whitten v. The City of Easley, 62 Fed. App. 477, 2003 U.S. App. Lexis 6739, 2003 WL 1826672 (4th Cir. 2003) (note that this case cited the Berry case). In that case the court determined that the city firefighters' on-call policy was not so restrictive as to require payment under the FLSA as hours worked. Firefighters carried pagers, were "encouraged" to respond to 80 percent of the call outs, received an average of 6 calls per month and were free during their on-call time to engage in personal pursuits, including dining, shopping, imbibing, and working part-time jobs. In determining whether "on call" time is compensable as overtime, courts consider whether the time is spent predominantly for the employer's benefit or for the employee's benefit. In other words, the question is whether the employee is "engaged to wait" or "waiting to be engaged." To distinguish between these two, courts weigh several factors, including: (1) whether the employee may carry a beeper or leave his home; (2) the frequency of the calls and the nature of the employer's demands; (3) the employee's ability to maintain a flexible "on call" schedule and switch "on call" shifts; and (4) whether the employee actually engages in personal activities during "on call" time. This analysis is important because the FLSA only requires employers to compensate employees who are "engaged to wait."

Merely carrying pagers does not entitle supervisors to compensation. In fact, carrying pagers enables them to freely engage in personal activities and leave their homes. The pagers allow them freedom and flexibility to engage in personal pursuits.

There is a further overtime issue in this circumstance, because the trigger for overtime is different under the FLSA for law enforcement (171 hours per 28-day work period, or prorated for a shorter work period) and for fire protection (212 hours per 28-day work period, or prorated for a shorter work period). So if this person works both in law enforcement and fire protection, the overtime is calculated based on the job "in which the employee spends the majority of work time during the work period." 29 C.F.R. Sec. 553.213.

An exempt employee must receive his or her full salary for any week in which he or she performs work, without regard to the number of days or hours worked, unless one of the following exceptions is met:

1. The employee is absent from work for one or more full days for personal reasons, other than sickness or disability;
2. The employee is absent for one or more full days because of sickness or disability (including work-related accidents) and the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability;
3. The city imposes, in good faith, unpaid disciplinary suspensions of one or more full days for infractions of certain workplace conduct rules;
4. The city imposes penalties in good faith for infractions of safety rules of major significance;
5. The employee takes leave under the Family and Medical Leave Act (FMLA); or
6. The employee is absent the entire workweek or performs no work during an entire workweek.

Deductions also are not allowed when the absence is caused by jury duty, attendance as a witness, temporary military leave, or if the absence was occasioned by action of the city (e.g., closing city hall for the day in order to put in new flooring).

On the other hand, if the public employer has adopted a personnel policy providing for sick or vacation leave, the employer may "dock" an employee's salary if leave is taken for personal reasons after his or her leave balances have been exhausted. Salary may also be docked, if an employee takes unpaid leave provide for under the Family and Medical Leave Act (FMLA).

There is one exception to this rule which is that, if the study activity is of a general nature and of benefit to the worker as well as the employer, it may not be compensable working time.