8th Circuit: Public Employees Found Entitled to Overtime for Hours Not Worked

By Scott M. Wich Oct 20, 2006
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The ability of public employers to allow employees to cover shifts for one another is an important staffing tool. However, according to the 8th U.S. Circuit Court of Appeals, an employee scheduled to work overtime but who then has another employee cover his shift is entitled to overtime pay for that shift even though the worker performed no overtime work.

Several current and former firefighters sued the City of Aberdeen, S.D., under the federal Fair Labor Standards Act (FLSA). The firefighters claimed that they were due unpaid overtime wages for scheduled work in excess of the maximum permitted without premium pay. The claims were based on a provision of the FLSA unique to the public sector.

The firefighters often would ask co-workers to cover their shifts. In such circumstances, the city would still pay the firefighter scheduled to work the shift. The originally scheduled firefighter would, in turn, pay the substitute firefighter under a private agreement between the two workers. However, the city would pay only the originally scheduled firefighter on a straight time basis, even if he would have been entitled to overtime pay had he actually worked the shift.

In the lawsuit, neither side disputed the facts. Rather, the litigation was centered on the interpretation of the law. The firefighters claimed that they should be paid overtime, not straight time, wages for shifts for which they found substitutes. In support of the claim, a federal Department of Labor (DOL) regulation was cited which excludes the hours worked by a substituting employee from the calculation of overtime for that employee. The regulation concludes that, “each employee will be credited as if he or she had worked his or her normal work schedule for that shift.”

The city argued that the regulation is contrary to the FLSA and should be given no effect. Specifically, the city highlighted that the federal statute requires that hours be actually worked to qualify for overtime pay. The district court sided with the city.

The appellate court reversed, finding that the regulation was not inconsistent with the FLSA. Relying on the legislative history of the FLSA, the court noted that the purpose of the law is to permit shift trading traditional to firefighters and police officers without affecting the computation of overtime for the employees or causing a public entity to incur unexpected overtime liability through the movement of shifts to overtime eligible employees.

The court concluded that, if two employees trade hours, each employee should be credited as if the employee had worked the normal work schedule. In doing so, the court noted approval of a DOL interpretation that employees should be credited as if they had actually worked the shift. Employees originally scheduled for more hours than permitted under the FLSA, consequently, would be entitled to overtime pay for the additional hours regardless of whether the employee worked those hours or traded them to a co-worker.

Senger v. City of Aberdeen, S.D., 8th Cir., No. 05-3803 (Sept. 29, 2006).

Professional Pointer: This decision provides a useful reminder to both public and private employers. In wage and hour cases concerning eligibility for overtime, there is often no controversy regarding the facts. Consequently, wage and hour eligibility issues are particularly well-suited for preventative efforts such as internal assessments and audits. As a growing field of litigation against employers, wage and hour law is a significant area for employers to focus compliance efforts.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York.

Editor’s Note: This article should not be construed as legal advice.

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