SITE CONTENTS:

The Basis For The Lawsuit

The lawsuit has four basic claims: that employees have not been paid for all work, that the overtime rate used by the City does not comply with the FLSA, that the City’s compensatory time off policies violate the FLSA, and that overtime has not been paid in a timely fashion.

Unpaid Work. Depending upon where the employee works, there is a possibility that employees have engaged in one or more of the following kinds of work without pay:

Pre-Shift or Post-Shift Work. Employees may have engaged in one or more of the following forms of uncompensated work:

  • Pre-shift briefings or other required information exchange,
  • Equipment (including vehicle) preparation or maintenance checks,
  • Filling out paperwork or report writing,
  • For police officers, “donning and doffing” or putting on and taking off uniforms, equipment, and protective gear,
  • Making work related telephone calls, and
  • Attending work-related meetings, or talking to the City’s “customers.”

Meal Periods. Employees may not have been completely relieved of duty during their meal periods. If not, the time spent during meal periods should be paid work time.

Training. Employees may be entitled to compensation for one or more of these activities, related to training:

  • Unpaid training during off-duty hours,
  • Training sessions which run longer than scheduled or into meal breaks,
  • Required homework or "practice" to be done off-duty, and
  • The time spent by Instructors assisting or evaluating trainees, preparing lesson plans, setting up and taking down the training facility, or evaluating trainees or grading assignments.

Commuting/Travel Time. Under some limited circumstances, the time spent commuting or traveling may be paid time. Those circumstances could include:

  • When reporting to a different, temporary work site or location,
  • When transporting employer equipment or other employees to or from home or a worksite,
  • When traveling from a central reporting site or one stations to a worksite or a different station,
  • When engaging in actual work while commuting. For example, a police officer engaging in traffic enforcement while commuting is working, and
  • Unpaid travel time (including drive, airport, and flight time) for business trips either off-island or to the mainland.

Other Types Of Off-Duty Work. These types of claims include unpaid:

  • Maintenance on employer equipment, including take-home vehicles, and
  • Animal care or training for animals an employer owns or is responsible.

Regular Rate of Pay. Under the FLSA, the overtime rate is determined by a formula. Under the formula, an employer must determine all "remuneration for employment" during a workweek, and then divide that total by the number of regular hours worked to produce the "regular rate of pay." The "regular rate of pay" is then multiplied by 1.5 to produce the overtime rate for each hour of overtime worked during that workweek. The lawsuit contends that the City has underpaid employees by first failing to correctly determine the "remuneration for employment," and then by failing to use the correct formula to determine the "regular rate of pay."

The FLSA has a broad definition of "remuneration for employment" that includes not just an employee's straight-time wages, but virtually all other compensation that shows up on an employee's paycheck, including night shift differential, hazardous duty pay, premium pay, specialty pay, temporary assignment pay, premium pay, longevity pay, standard of conduct pay, and other types of pay and differentials. The first claim in each lawsuit alleges that the employers have not included all required forms of compensation in determining the total "remuneration for employment," and have underpaid employees for the overtime hours that they have worked.

Compensatory Time Off. Under the FLSA, compensatory time off must be accrued at the time and one-half rate, may not be forfeited, must be cashed out on retirement/termination at the then-current regular rate of pay, and may be used by the employee with reasonable notice provided no undue disruption to the employer results. The lawsuit is almost certainly likely to raise claims that the City has not met all these requirements.