Vol. 19 No. 8- FLSA Update

July 9, 2004

Mortensen v. County of Sacramento

368 F. 3d 1082 (2004)

A deputy sheriff for the County of Sacramento, sued the county claiming that the Fair Labor Standards Act (FLSA), 29 U.S.C. section 207(o), requires the county to allow its deputies to use accrued compensatory time off (CTO) on days they specifically request, unless it would “unduly disrupt” the law enforcement agency’s function within the meaning of section 207(o)(5).

CTO was granted on a first come first served basis. Each employee had access to a leave book detailing the number of employees who were scheduled each day. The available leave spots were predetermined by the county and used to schedule all future requests for time off, including CTO. If all of the leave slots were full, all additional requests for discretionary leave were denied to avoid the shift being under-staffed.

In interpreting “reasonable period” and “unduly disrupt,” the Court stated the following: “The ‘reasonable period’ clause imposes upon the employer the obligation to facilitate the employee’s timely usage of his accrued compensatory time (a time period for the county to either grant CTO or pay out its cash value). The ‘unduly disrupt’ clause suggests conditions, however, that would release the public employer from the previously imposed condition.”

The Ninth Circuit Court of Appeal concluded that Section 207(o)(5) “unambiguously states that once an employee requests the use of CTO, the employer has a reasonable period of time to allow the employee to use accrued time.” Whether an employee’s request “was granted within a ‘reasonable period’ depends upon the customary work practices of the employers, and an analysis of the terms contained in the Agreement [between the Deputy Sheriffs’ Association and the county].”

According to the Court, “the statutory language precludes an employee from forcing an employer to grant CTO in accordance with the employees’ wishes.” (Emphasis added)

The Court held “that the county’s implementation of its leave policy, which may result in denying a specific request when there are no available leave openings, and the parties’ Agreement regarding CTO use, are consistent with section 207(o)(5).”

The Court noted that employees do not have absolute discretion over the use of compensatory time. Those rights must be balanced with that of the employer.


An employer may deny a specific CTO leave request if it is the customary work practice of the employer and if the collective bargaining agreement [prepared in accordance with section 207(o)(5)] specifically states as such. This is true even where the use would not cause an undue disruption, provided the collective bargaining agreement defines a “reasonable period.” Addressing this issue in an MOU appears to be of significance and should be considered.

Ballaris v. Wacker Siltronic

2004 U.S. App. Lexis 10797 (2004)

The employer, a silicon wafer manufacturer, required its employees to wear uniforms and gowns. The uniform requirement was found to be a benefit to the employer (integral and indispensable to the principal activities). Additionally, the employer did not permit wearing its uniform off the work permises. The Ninth Circuit Court of Appeal held the following:

• Wearing uniforms is an integral and indispensable part of the job where employees arerequired to conduct changing on site and employer receives primary benefit from dress.

• The Portal to Portal Act of 1947 excludes ordinary changing of clothes but when such changing is not merely a convenience to employee, and is directly related to specific work, changing is compensable.

• If changing of clothes on employer’s premises is required by law, by rules of employer, or by nature of work, the activity may be considered integral and indispensable to the principal activities. Employees must also be compensated for travel time between rooms and lockers.

• Compensated time [in this case] is defined as gowning and related activities [putting on and taking off plant uniforms, traveling between clean rooms and locker rooms and participating in daily required meetings].

• Employers may not include compensation for the paid lunch periods in calculating regular rate. Use of paid lunch compensation to offset wages or overtime compensation due for hours worked is in direct violation of express provisions of section 7 (h) of the FLSA [29 U.S.C.S. section 207(h)]. An employer may not use non-work time (benefit) as credit to avoid paying compensation required by FLSA.

• It is acceptable for employee and employer to agree to exclude certain activities (i.e. lunch) when calculating the regular rate.


If you are an employer who requires that uniforms be changed on-site, and this serves as a benefit to the employer, then you must compensate the employee for that time and for related activities.

An employee would only need to be compensated for changing into and out of uniforms if the employer required him or her to do so on-site, and the employee’s job could not be performed without the presence of such a uniform (integral and indispensable part of the job); or the employer agreed to compensate employee for changing; or if employer maintained a past practice or custom of compensating for such activities.

An employer may not offset a paid lunch period against any or all such amount or against any other compensation otherwise due.