November 5, 1997
You have the following questions:
1. Should the ten minutes during which police officers attend mandatory roll-call be calculated in the time police officers work for the purposes of overtime compensation?
Although the city has an argument that the answer is no, the law is unclear on that point. I generally counsel cities not to gamble on Fair Labor Standards Act (FLSA) questions, and do so here. If an error is to be made in this area, it should be made on the safe side of the question. However, you will see in the answer to Question 2 that adding the hours the city's officers spend in roll-call will probably have little impact on the city's payment of overtime compensation under ordinary circumstances.
Generally all time during which employees are required to be on the employer's premises is compensable for the purposes of the FLSA. An exception is where the time is de minimis. Under International Business Investments, Inc. v. United States, 11 Cl. Ct. 588 (1987), the ten minutes federal prison guards spent obtaining and returning weapons before and after leaving their duty stations was held to be de minimis; therefore, it was not compensable under the Contract Work Hours Safety Standard Act. Although that Act appears to apply only to certain government contact work, as far as I can determine, the same rule applies under the FLSA.
However, I think it is a mistake for the city to count the 10 minute roll call as non-compensable time. The Department of Labor apparently does not consider regularly scheduled 10 minute periods de minimis. 29 CFR, section 785.47, after citing the de minimis rule, declares that:
This rule applies where there are uncertain and indefinite periods of time involved of a few seconds or minutes duration, and where the failure to count such time is due to considerations justified by industrial reality. An employer may not arbitrarily fail to count as hours worked any part, however small, of the employee's fixed or regular working time or practically ascertainable period of time he is regularly required to spend on duties assigned to him. [Emphasis is mine.] See Glen L. Martin Nebraska Co. v. Culkin, 197 F.2d 981, 987 (8th Cir. Ct. App. 1952, cert denied, 334 U.S. 866 (1952), holding that working time amounting to $1 of additional compensation a week is "not a trivial matter to a workingman," and was not de minimis; Addison v. Huron Stevedoring Corp. 204 F.2d 88, 95 (2nd Cir. Ct. App. 1953), cert denied 346 U.S. 877, holding that "to disregard workweeks for which less than a dollar is due will produce capricious and unfair results." Hawkins v. E.E. du Pont de Nemours & Co., 12 W. H. Cases 448, 27 Labor Cases, para. 69.094 (E.D. Va. 1955), holding 10 minutes a day is not de minimis.
The city's roll-call time is a regular, fixed, definite, ascertainable, and mandatory 10 minutes. Being a guinea pig in an experiment to determine if that 10 minutes is or is not de minimis is a hazardous position for the city. That is particularly true where the roll-call (as is the nature of roll-calls) is a regular mandatory event. For that reason, I would calculate roll-call time as compensatory time.
2. What, if any, is the rate of compensation due non-exempt police officers for work between 160 and 171 hours when their work period is 28 days, and their regular schedule during that work period is 160 hours? You indicated that your city pays its officers straight time for work between 160 and 171 hours, but that some cities do not even pay their police officers for hours worked between 160 and 171.
The best way to answer that question is to refer you to a DOL opinion letter dated October 22, 1987, a copy of which I have enclosed. Under the facts in that letter, the city had chosen a 28 day work period, during which officers worked tours of duty totaling 160 hours (20, 8 hours tours of duty). They also spent an additional 5 extra hours at roll-call (15 minutes each day, which is clearly not de minimis under the FLSA). They were not compensated for that 5 hours. The question was how the 5 hours were to to be counted for the purposes of compensation under the FLSA. The letter also addressed similar questions with respect to travel and training time.
The letter opined that the FLSA was satisfied if the officers received the minimum wage for all their hours worked during the work period. In other words, the officers' pay was calculated based on all of their hours worked, and the city was in compliance with the FLSA if their pay for all those hours up to 171 exceeded the minimum wage.
One could argue that the officers who were the object of that opinion letter were not being paid for the 5 hours they spent at roll-call, but one could just as well argue that they were not being paid for 5 hours they spent on any tour of duty. In any case, all their hours were calculated to determine if they were paid at least minimum wage up to 171 hours. In that respect, they were being paid for all the hours they worked, but if they worked hours beyond their regularly scheduled 160 hours, those extra hours reduced their rate of pay for all their hours worked.
As measured by the enclosed opinion letter, your city's payment of straight time between 160 and 171 hours is legal under the FLSA.
Sidney D. Hemsley
Senior Law Consultant