A FOLLOW-UP TO “FLSA AND ‘VOLUNTEERISM’ BY EMPLOYEES”
July 9, 2009
We recently received an inquiry from a client asking whether the provisions of 29 CFR § 553.221(f) might alter the opinion we expressed in our June 2009 Client Alert concerning potential FLSA liability for officers driving to and from work in uniform and in a marked unit.
29 CFR § 553.221(f) provides that:
A police officer, who has completed his or her tour of duty and who is given a patrol car to drive home and use on personal business, is not working during the travel time even where the radio must be left on so that the officer can respond to emergency calls. Of course, the time spent in responding to such calls is compensable.”
We were aware of this regulation when we expressed our earlier opinion, but do not find it to be persuasive of the point.
The language of this regulation makes no reference to “marked” or “unmarked” units, nor, to whether the officer is or is not in uniform. Conversely, the analysis in our Client Alert went to the fact that where agencies allow officers to drive in uniform to and from work in a marked unit, the officers are during that transit time arguably performing preventative patrol, i.e., the same or similar duties for which they are compensated during their regular working/paid hours.
In addition, this regulation appears on its face to address the circumstance of an officer who is allowed a “take-home” car for personal use once off duty and after arriving at home. In our experience, this is not a practice allowed with marked patrol units, thus further reinforcing our view that 29 CFR § 553.210(f) is not instructive on the question of FLSA liability for uniformed officers in a marked unit in transit to and from work.
We do not point to any specific case decision, element of the CFR or DOL letter opinion to this effect. This is our cautionary interpretation, particularly in light of the rather liberal manner in which courts are deciding “donning and doffing” cases of late.
HOW THIS AFFECTS YOUR AGENCY
We continue to express the view that it would seem permissible for officers to volunteer for activities such as “Shop With A Cop,” marching in a civic parade while in uniform, and other such activities without violating federal wage and hour laws. This is, of course, on the assumption that officers have volunteered their time, and because activities such as taking a disadvantaged youth shopping or riding on a float in a parade are not the sort of “duties” to which on – duty officers are ordinarily paid.
However – and we cannot emphasize this strongly enough – it is essential that the employee is a true and genuine volunteer in both name and fact, and the activity for which the employee has volunteered does not involve the same or similar duties as those for which the employee is ordinarily compensated.
As always, we urge that you confer with your agency’s own attorney for legal advice and guidance. If you wish to discuss this case in greater detail, please feel free to contact either of us at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com or prc@jones-mayer.com.