“OFF THE CLOCK” ACTIVITY BY EMPLOYEES – IS IT AUTHORIZED?
By: Martin J. Mayer, General Counsel- California Peace Officers’ Association
Recently, there were two California Court of Appeals decisions which directly relate to whether or not an employee’s off duty activity is considered to be authorized and/or encouraged by the employer?
In one case, Jong v. Kaiser Foundation Health Plan, Inc., et al., 2014 DAR 6311 (5/20/14), the issue involved was whether “Kaiser had actual or constructive knowledge that he was working hours in addition to those that he reported?” In the second case, Young v. WCAB, 2014 Cal. App. LEXIS 562 (6/25/14), the question was whether a correctional officer qualified for workers compensation when he injured himself doing calisthenics while off duty?
Facts
In Jong v. Kaiser, “Jong and two other former OPMs [Outpatient Pharmacy Managers] brought a putative class action against Kaiser alleging numerous wage and hour violations, including, as relevant to this appeal, a cause of action for the alleged failure to pay overtime compensation for hours worked off the clock.”
In November, 2009, as a result of a lawsuit, OPMs were reclassified from salaried employees to hourly employees. It was claimed that “since being reclassified non-exempt, hourly workers, [OPMs] have been, and continue to be, forced to work ‘off the clock’ so as not to incur overtime premium pay in violation of [Kaiser’s] policy while still maintaining compliance with [Kaiser’s] lofty expectations.”
“Kaiser moved for summary judgment on the ground, as to this claim, that Jong lacked evidence that Kaiser “failed to pay overtime wages for hours he worked that Kaiser knew or should have known he worked.” The Court relied, in granting summary judgment for Kaiser, on statements by Jong at his deposition where he testified that “he did not know whether anyone in Kaiser management was aware he was performing the off-the-clock work he now claims to have performed before clocking in in the morning, after clocking out at the end of the day, and at home in between his work days. [¶] . . . Jong testified that he was unable to recall the number of off-the-clock hours he worked and kept no written record of those hours.”
In opposition to the summary judgment motion, Jong claimed that he was obligated to stay within his budget which required him to either “report all hours worked and face discipline for failing to stay within budget or refuse to report all hours so as [to] maintain his accountability for staying within budget and avoid the imposition of discipline.”
Furthermore, he claimed that “Kaiser was aware that OPMs, including plaintiff, were regularly required to work substantially more than 40 hours in a week to complete their job duties which remained the same after OPMs were reclassified to non-exempt.”
Jong appealed from the adverse judgment entered pursuant to the court’s ruling on the summary judgment motion, and on appeal challenged only the trial court’s ruling with respect to his claim for unpaid overtime compensation.
In Young v. WCAB, Young worked as a Correctional Sergeant for the Butte County Sheriff’s Department. The Department had a policy which required that its officers “maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer.” In addition, Correctional sergeants were required to complete periodic training exercises each year, many of which involve physical activity.
The Court noted that “(d)espite requirements to maintain good physical condition, the Department does not provide officers with an opportunity to exercise or participate in a fitness regimen during work hours; nor does the Department provide guidance as to the types of exercises or activities considered appropriate for maintaining the requisite level of fitness. As such, Sergeant Young maintains his physical fitness through his own fitness regimen at home when off duty.”
“On January 9, 2012, Sergeant Young was doing his usual warm-up calisthenics, specifically jumping jacks, in anticipation of more demanding exercises with his elliptical and weight machines. During one of the jumping jacks, Young came down and felt ‘extreme stabbing pain in [his] left knee.’ Young reported this injury as work-related “because the injury took place specifically because [he] was exercising in order to maintain [him]self in a physical condition required by [the] [D]epartment.”
“The workers’ compensation judge (WCJ) concluded that Sergeant Young’s injury was compensable under section 3600(a)(9), finding, under the applicable legal test, that Young had a subjective belief the Department expected him to engage in a physical fitness regimen, and that such a belief was objectively reasonable. The WCAB disagreed that such a belief was objectively reasonable under a mere ‘general requirement’ to maintain fitness, and annulled the WCJ’s decision.” The Court of Appeals issued a writ to review the WCJ decision.
Discussion by the Courts
Although Jong v. Kaiser Foundation was brought under California’s Labor Code section 1194, “the parties and the trial court assumed the applicability under the Labor Code of certain principles that federal courts have applied in similar cases under the Fair Labor Standards Act (FLSA).” The Court cited to a previous federal court decision which held, “where an employer has no knowledge that an employee is engaging in overtime work and that employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation of § 207 [of the FLSA].”
Furthermore, the Court found that an employer may not “escape responsibility by negligently maintaining records required by the FLSA, or by deliberately turning its back on a situation. However, where the acts of an employee prevent an employer from acquiring knowledge, here of alleged uncompensated overtime hours, the employer cannot be said to have suffered or permitted the employee to work in violation of § 207(a).”
The Court noted that Jong’s “evidence” consisted of hearsay testimony taken from other cases, where other OPMs stated that Kaiser was aware of their working more than 40 hours in a week. However, even Jong agreed that such hearsay statements cannot be used to “prove” that “Kaiser had constructive knowledge that all OPMs were in fact working 48 hours or more per week.”
Furthermore, the Court ruled that the prior testimony “hardly put Kaiser on notice that when their classification was changed and they were directed not to work overtime without prior approval and to report any overtime that they did work, OPMs in general, and Jong in particular, failed to comply with those directives.”
In this case, “after reviewing all of the evidence that Jong tendered in opposition to the summary judgment motion, we reach the same conclusion as did the trial court—that none of this evidence, considered independently or collectively, is sufficient to support a finding that Kaiser was aware of his unreported overtime hours. Jong failed to create a triable issue of a material fact essential to his claim, and Kaiser’s motion for summary judgment therefore was properly granted.”
In Young v. WCAB, the key issue was whether or not Young’s belief, that off duty physical activity by him was expected by the Sheriff’s Department, was reasonable? It is acknowledged that California “Labor Code section 3600, subdivision (a)(9) forecloses workers’ compensation coverage for an injury that arises out of ‘voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.’”
The Court held that “(w)e conclude that a county jail correctional sergeant’s off-duty injury, sustained when he was performing jumping jacks at home as part of his regular warm-up exercise regimen, arose in the course of his employment under section 3600(a)(9)’s exception for coverage, where a departmental order required correctional officers to ‘maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer,’ and where the Butte County Sheriff’s Department required its correctional officers to undergo periodic training exercises, many of which involved physical activity.”
The Court found that “(t)here have been a number of cases applying section 3600(a)(9) (or its predecessor), which have found injuries — sustained by law enforcement officers while engaging in athletic activities — to be compensable under workers’ compensation.” The Court cited to cases where off duty activity was found to be job related: (1) an ankle injury sustained by a police officer while running off duty at a school track because the agency’s physical fitness test “included a requirement that officers over the age of 35, as was the officer . . ., must be able to run two miles in 17 minutes;” (2) a (CHP) officer while she was practicing a standing long jump at home because the “standing long jump was part of the CHP’s annual, mandatory fitness test;” and (3) an officer who sustained an injury while running on vacation because “(a)s a SWAT member, the officer was required to pass a fitness test to qualify for the unit initially, and was required to pass supplemental fitness tests each year.”
In other instances, off duty athletic activity was not considered job related: (1) where a police officer was injured at a city-owned gymnasium while playing in a pickup game of basketball during his lunch break because, among other things, “(t)he police department also issued a general order, which included a provision that workers’ compensation benefits would not be awarded for athletic injuries unless approval for an athletic event or exercise had been obtained in advance;” and (2) an officer’s injury, sustained while playing in an off-duty pickup basketball game, was not compensable because, although the department expected officers to be fit, and “he believed officers should be in shape, the officer knew he was not subject to any kind of fitness testing and he was not aware of any officer being disciplined for not being fit.”
However, in the Young case, “Sergeant Young’s belief — that the Department expected him to engage in warm-up calisthenics as part of an off-duty exercise regimen — was objectively reasonable as a matter of law.”
The Court held that although “departmental directives required correctional sergeants to maintain good physical condition and a certain physical ability, the Department does not provide correctional sergeants with an opportunity to exercise or maintain a fitness regimen during work hours; nor does the Department provide guidance as to the types of exercises or activities considered appropriate for maintaining the requisite level of fitness. Accordingly, it is objectively reasonable for Sergeant Young to believe that the Department expected him to engage in an off-duty exercise regimen to maintain his physical fitness.”
Conclusion
In each of these cases, it is clear that agencies must have policies which define “off the clock” activities which are acceptable and/or prohibited. In a case involving employeesworking “off the clock,” policies which explicitly prohibit such work, and/or mandate that prior written approval be obtained before engaging in any such work, are imperative.
In those situations involving physical fitness, it’s important to review policies to see if physical fitness tests are required by the department and, if they are, do they establish guidelines regarding types of activities which are approved and/or supervised. In one situation, in which Jones & Mayer was involved, the agency was able to secure a contract with a local fitness trainer who agreed to provide service to officers, through the department, to insure safe and appropriate fitness training.
In Jong, the Court notes that the cases cited by Jong, “do stand for the unquestioned proposition that an employer’s actual or constructive knowledge of the hours its employees work is an issue of fact.”
For example, Jong had offered evidence that the company’s alarm system showed that he entered the facility before he was due and stayed after work hours. However, the Court found that “even assuming that the availability of such data could otherwise meet the ‘should have known’ requirement, as opposed to ‘could have known,’ the alarm data does not show what Jong was doing during the time between disarming the alarm and clocking in, or between checking out and arming the alarm.”
In Young, the Court points out that “(t)o allay any concerns law enforcement departments may have about potentially increased liability as a result of this decision, we note that departments have the ability to limit the scope of potential liability by designating and/or pre-approving athletic activities or fitness regimens.”
Each of these potential problems can be reduced and/or eliminated but it will take a pro-active approach on the employer’s part. The establishment of policies and guidelines is a good start, but follow up on those policies is imperative.
Martin J. Mayer is a name partner with the law firm of Jones & Mayer which represents cities and counties throughout the state. He has served as General Counsel to CPOA for more than 30 years.