By John P. Hasman
While the federal Fair Labor Standards Act (FLSA) has a specific regulation that addresses whether time spent in union matters is working time, the regulation leaves that determination to “the process of collective bargaining or to the custom and practice under the collective bargaining agreement.”
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Get Your Report Now!A class action lawsuit currently pending in the federal court in the Eastern District of Missouri alleges that Southwestern Bell violated the FLSA when it failed to compensate shop stewards for time spent in union-related meetings or on union business. This case highlights the interplay between federal labor law and the FLSA.
Are union-related activities compensable?
The union employees claim that the hours they spent in union representational activities, including investigatory, grievance, disciplinary, and other labor management meetings, were hours worked but not paid in violation of the FLSA.
It is generally accepted that employers must pay for the time employees spend performing tasks for the employer’s benefit. Southwestern Bell argues that the union-related time was not compensable because it was not contemplated as compensable time in the CBA between the union and the company. As a result, Southwestern Bell has asked the court to dismiss the case or send it to arbitration under the terms of the CBA. Josh Kayser et al. v. Southwestern Bell Telephone Company,U.S. Dist. Ct. E.D. Mo. (4:10-CV-1495).
What to remember
Class action lawsuits under the FLSA have been increasing in frequency. The theory being advanced by the employees in this case could affect all employers that have union shop stewards or nonunion employees who serve on committees or attend meetings on behalf of coworkers.
Regardless of how this case is ultimately decided, employers must ensure they have clearly established and communicated guidelines on how work time is recorded and what time is and is not compensable. For employers with union employees, it is essential that all contractual terms regarding time spent on union activities be clearly set forth and that an agreement stating whether the time counts as time worked for purposes of calculating pay and overtime is reached. Clear contractual language and policies are essential, but consistent and well-documented practices are equally important. Proof that your practice is different from the contract language or policy could create fertile grounds for costly litigation.
The author can be reached at JHasman@ArmstrongTeasdale.com.