By Kate Acheson
In Brubach v. City of Albuquerque, a group of city security guards claimed the City violated the Fair Labor Standards Act (“FLSA”) by failing to compensate them for pre-shift briefings. The City of Albuquerque moved to dismiss the guards’ complaint, claiming the time was voluntary. The federal court denied the City’s request, noting that enough dispute of fact existed to require a jury to decide the matter. The City also claimed the time was de minimis – so small it is legally insignificant. The court rejected this argument as a matter of law.
Until September 1, 2011, a standard operating procedure for the City of Albuquerque stated that security guards “should arrive for duty five minutes prior to their assigned shift to be briefed by officers going off duty.” Although no guards were ever disciplined for failing to report five minutes early, at least eight guards were told by at least seven different Sergeants, two Lieutenants, and one supervisor that they were required to arrive five minutes early. One guard was even told she would be written up if she did not arrive early.
The FLSA requires employees who work more than 40 compensable hours a week to be paid overtime. All time that an employer specifically requires an employee to work, which generally includes on duty time on the employer’s premises or at a prescribed workplace, may be included in calculating overtime even if no physical or mental exertion is required. To prove and employer did not properly calculate or compensate time, an employee must show that (1) the uncompensated time was spent as an employee and (2) the employer had actual or constructive knowledge that the employee was working overtime.
A person’s work is considered done as an employee if that work is “required by the terms of [the person’s] employment” of if the person was “suffered or permitted to work” by their employer. Here, there was a suggestion in the policy, but that suggestion was enforced: several guards were told by at least seven Sergeants, two Lieutenants, and one supervisor that they were required to arrive to work five minutes early for briefing; one guard was threatened with discipline if she failed to arrive early. Even if a policy is merely a suggestion, “pressure or encouragement to work may support an FLSA violation.” Thus, the court determined enough evidence existed that a jury must decide if the pre-briefing time was spent as an employee.
An employer is considered to have actual or constructive knowledge if they had the “opportunity through reasonable diligence to acquire knowledge.” Here, the City was aware of its policy recommending that security officers arrive five minutes prior to their shifts for briefing. The “arrive early” policy was also shown to be enforced – by at least seven Sergeants, two Lieutenants, and one supervisor. Thus, the court determined enough evidence existed that a jury must decide if the city knew or should have known about the overtime.
Furthermore, in response to the City’s claim that the time was de minimis, the court found that time spent in the pre-shift briefing period cannot be dismissed under the Department of Labor regulations, which provide:
“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.”
Thus, because the guards’ five-minute briefing period was a “fixed or regular” work time, it cannot be excused as de minimis.
