Burden of proof, executives, professionals, administrators, outside salesman, lectures, training, meal periods, subject-to-call time, defenses, remedies

by Todd J. McNamara and J. Alfred Southerland

Excerpted from Federal Employment Jury Instructions


The Fair Labor Standards Act of 1938 establishes minimum wage and overtime standards for employees who are “engaged in commerce or in the production of goods for commerce.” Covered employers include “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.” 29 U.S.C. §203(d).

The Act simply defines “employee” as “any individual employed by an employer.” 29 U.S.C. §203(e)(1). The courts have broadly interpreted the term “employee.” If an employer “suffers or permits” an individual to work, an employment relationship results under the Fair Labor Standards Act regardless of whether the parties intended to create an employment relationship. Brennan v. Partida, 492 F.2d 707, 709 (5th Cir. 1974). The concept of employment under the Act is very broad and is tested by the “economic realities” of the relationship. The economic reality test is used in determining whether an individual is an employee or an independent contractor.

The federal minimum wage for covered non-exempt employees is currently $5.15 per hour. Many states also have minimum wage laws. Where an employee is subject to both the state and federal minimum wage laws, the employee is entitled to the higher minimum wage. There are minimum wage exceptions applicable under specific circumstances to disabled workers, full-time students, youth under the age of twenty in their first ninety consecutive calendar days of employment, tipped employees and student-learners.

The Fair Labor Standards Act requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after forty hours of work in a work week. The Act does not require daily overtime or overtime for hours worked on weekends or holidays. The Fair Labor Standards Act does provide exemptions from the overtime pay provisions, and there are some exemptions which exclude certain employees from both the minimum wage and overtime provisions of the Act. The exemptions are narrowly construed against the employer, and the employer bears the burden of proving that the exemption actually applies. Some of the commonly claimed exemptions include “white collar” exemptions for professional, executive and administrative employees. There are additional exemptions which include but are not limited to outside salespersons, drivers, farm workers, amusement and recreational establishments, camps, conference centers, fishing industry, small newspapers, seamen, and domestic employees. See 29 U.S.C. §213.

Wage and hour problems under the Act typically arise in trying to determine what time constitutes hours worked by the employee. The federal regulations under the Act address such issues as waiting time, on call time, rest and meal periods, sleeping time, attendance at lectures, meetings and training programs, and travel time.

References: For discussion of gender issues arising in equal pay claims, see Chapter 1, Gender Discrimination.

§6:10 Enforcement

The United States Department of Labor, Wage and Hour Division, is primarily responsible for the enforcement of the Fair Labor Standards Act. Employers subject to the Act are required to post compliance posters to give employees knowledge of the Act and of its applicability to their employment. The Wage and Hour Division has authority to conduct investigations and inspections to determine if violations of the FLSA are being committed.

§6:20 Remedies

The Wage and Hour Division is authorized to file suit against an employer who does not voluntarily come into compliance with these Acts. The Wage and Hour Division may seek an injunction to restrain the employer from violating the FLSA. Additionally, the Wage and Hour Division could bring a suit to recover minimum wages and overtime pay owed to the employee, as well as an equal additional amount for liquidated damages. Individuals are also permitted to bring a private action against an employer to recover any back wages due under the FLSA plus an equal additional amount of liquidated damages. In addition to back pay and liquidated damages, the individual may recover a reasonable attorneys fee.

Suits for back pay are subject to good faith defenses made available by the Portal-to-Portal Act. 29 U.S.C. §259; Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658 (4th Cir. 1969). If an employer can prove that it acted in good faith reliance on and in compliance with specified administrative rulings or regulations, it may avoid liability for back pay and liquidated damages. The court has discretion to reduce the amount of liquidated damages if the employer proves it acted in good faith and with reasonable grounds for believing that no violation was being committed. 29 U.S.C. §260.

Claims for unpaid minimum wages and unpaid overtime compensation are subject to a two-year statute of limitations unless the employer’s violations are willful. For willful violations, a three-year statute of limitations applies. 29 U.S.C. §255(a).

II. JURY INSTRUCTIONS, INTERROGATORIES, VERDICT FORMS

A. Generally

§6:30 Broad Instruction

This case arises under the Fair Labor Standards Act, a federal law that provides for the payment of minimum wages [and/or time-and-a-half overtime pay]. The Plaintiff claims that the Defendant did not pay him the legally required minimum wage [and/or overtime pay].

The Plaintiff must prove each of the following by a preponderance of the evidence:

1.the Defendant employed the Plaintiff during the time period involved;

2.[Plaintiff’s work was engaged in commerce or in the production of goods for commerce] or [Defendant’s business or businesses under unified operation or common control employed at least two persons and was engaged in commerce or the production of goods for commerce and had an annual gross sales of at least $500,000.00]; and

3.Defendant failed to pay the Plaintiff the minimum wage [and/or overtime pay] required by law.

The term “commerce” has a very broad meaning and includes any trade, commerce, transportation, transmission or communication between any state and any place outside that state.

A person is considered to have been “engaged in the production of goods” if the person produced, manufactured, mined, handled, transported, or in any manner worked on such goods or worked in any closely related process or occupation directly essential to the production of the goods.

The minimum wage during the period of time involved in this case was $_______ per hour.

In determining whether an employer has paid the minimum wage, the employer is entitled to a credit for the reasonable costs it incurred in furnishing certain items such as meals, lodging, or other facilities if the employer regularly provided the meals, lodging, or other facilities for the benefit of the employee.

An employer must pay its employees at least one and one-half times their regular rate for overtime work.

An employee’s regular rate is the basis for calculating any overtime pay due the employee.

The regular rate for a week is determined by dividing the first 40 hours worked into the total wages paid for those 40 hours. The overtime rate, then, is one and one-half times that rate.

In its defense, the Defendant claims that even if you should find that the Plaintiff has proved all the necessary elements of [his/her] claim, the minimum wage law [the overtime pay law] does not apply because the Defendant is exempt from those requirements.

The exemption claimed by the Defendant is [insert applicable exemption].

To receive the benefit of the exemption, the Defendant must prove by a preponderance of the evidence [list or describe essential elements of the claimed exemption].

If, after considering all of the evidence, you find that the Plaintiff has failed to prove one or more of the elements of [his/her] claim, your verdict must be for the Defendant.

Even if the Plaintiff has proven the elements of [his/her] claim, you must return a verdict for the Defendant if the Defendant proves by a preponderance of the evidence that it is exempt from the minimum wage law [or, the overtime pay law].

If, however, you find that the Plaintiff has proved by a preponderance of the evidence all of the elements of [his/her] claim, and that the Defendant has failed to establish its claim of exemption from the minimum wage law [or, the overtime pay law], then your verdict must be for the Plaintiff and you must determine the damages that the Plaintiff is entitled to recover.

The measure of damages is the difference between what the employer should have paid the employee under the law and the amount that you find the employer actually paid.

Comments

Source of Instruction:Pattern Jury Instructions, 5th Cir. 11.1 (2004). For a similar instruction, see Pattern Jury Instructions, Federal Claims Instruction, No. 9.1 (11th Cir., 1990 ed.).

For employer exemptions, see §§6:60 et seq.

§6:40 Construction

Exemptions from the overtime provisions of the Fair Labor Standards Act are to be narrowly construed against the employer.

Comments

Source of Instruction: Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 296 (1985); Birdwell v. City of Gadsden, Alabama, 970 F.2d 802, 805 (11th Cir. 1992).

§6:50 Employer’s Burden of Proof

The employer has the burden of establishing by a preponderance of the evidence that it is entitled to the benefit of an exemption under the Fair Labor Standards Act.

Comments

Source of Instruction:Dybach v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1566 n.5 (11th Cir. 1991); Dalheim v. KDFW-TV, 918 F.2d 1220, 1224 (5th Cir. 1990); Hays v. City of Pauls Valley, 74 F.3d 1002, 1005 (10th Cir. 1996).

B. Employer Exemptions Based on Employee’s Position

1. Executives

§6:60 Long Test

The exemption claimed by the Defendant is the bona fide executive exemption. To receive the benefit of this exemption, the Defendant must prove by a preponderance of the evidence all of the following elements:

1.the employee’s primary duty consists of the management of the business in which [he/she] is employed [or of a customarily recognized department or subdivision of the business];

2.the employee customarily and regularly directs the work of two or more employees;

3.the employee has the authority to hire or fire other employees [or make suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees];

4.the employee customarily and regularly exercises discretionary powers;

5.the employee does not devote more than 20% [or in the case of an employee of a retail or service establishment 40%] of [his/her] hours of work in the work week to activities which are not directly and closely related to the performance of the work described in (a) through (d) above; and

6.the employee is paid a salary at the rate of not less than $155.00 per week.

Comments

Source of Instruction: 29 C.F.R. §541.1.

§6:70 Short Test

The exemption claimed by the Defendant is the bona fide executive exemption. To receive the benefit of this exemption, the Defendant must prove by a preponderance of the evidence that:

1.the employee was paid a salary of at least $250.00 per week, exclusive of board, lodging, or other facilities;

2.the employee’s primary duty consisted of the management of the business [or a customarily recognized department or subdivision of the business]; and

3.the employee customarily and regularly directed the work of two or more employees.

Comments

Source of Instruction: 29 C.F.R. §541.1(f)(3).

When to Use: This instruction is applicable when the employee is paid a weekly salary of at least $250.00 per week.

§6:80 Authority to Hire or Fire

In order for an employee to be an exempt executive under the Fair Labor Standards Act, the employee must have authority to hire or fire other employees, or at least, have the authority to make suggestions and recommendations which will be given particular weight as to hiring or firing, promotion or demotion, or any other status change for employees under [his/her] supervision.

Comments

Source of Instruction: 29 C.F.R. §541.106.

When to Use: Use this instruction with the Executive Exemption (Long Test) Instruction.

§6:90 Discretionary Powers

A person whose work is so completely routine that [he/she] has no discretion does not qualify for the executive exemption.

Comments

Source of Instruction: 29 C.F.R. §541.107.

When to Use: Use this instruction in connection with the Executive Exemption (Long Test).

§6:100 Primary Duty

Primary duty means the major part, or over 50%, of the employee’s time. Time alone, however, is not the sole test, and in situations where the employee does not spend over 50% of [his/her] time in managerial duties, [he/she] might nevertheless have management as [his/her] primary duty if other pertinent factors are present. These pertinent factors are the relative importance of the managerial duties as compared with other types of duties, the frequency with which the employee exercises discretionary powers, [his/her] relative freedom from supervision, and the relationship between [his/her] salary and the wages paid other employees for the kind of non-exempt work performed by the supervisor.

Comments

Source of Instruction: 29 C.F.R. §541.103.

When to Use: This instruction should be used in connection with the executive exemption long test (§6:60).

2. Administrators

§6:110 Long Test

The exemption claimed by the Defendant is the bona fide administrative exemption. To receive the benefit of this exemption, the Defendant must prove by a preponderance of the evidence all of the following elements:

1.the employee’s primary duty consists of the performance of office or non-manual work directly related to management policies or general business operations of the company for the company’s customers [or the performance of functions in the administration of a school system, or educational establishment or institution, or a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein];

2.the employee customarily and regularly exercises discretion and independent judgment;

3.the employee regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity [or who performs under only general supervision work along specialized or technical lines requiring special training, experience or knowledge] [or who executes under only general supervision special assignments and tasks];

4.the employee does not devote more than [20% (or 40% in the case of a retail or service establishment)] of [his/her] hours worked in the work week to activities which are not directly and closely related to the performance of the work described in (a) through (c) above; and

5.the employee is compensated at a salary not less than $155.00 per week [or in the case of an academic administrative personnel, is compensated on a salary basis equal to the entrance salary for teachers in the school system, educational establishment, or institution where the employee is employed].

Comments

Source of Instruction: 29 C.F.R. §541.2.

§6:120 Short Test

The exemption claimed by the Defendant is the bona fide administrative exemption. To receive the benefit of this exemption, the Defendant must prove by a preponderance of the evidence that:

1.the employee is paid a salary of at least $250.00 per week exclusive of board, lodging, or other facilities;

2.the employee’s primary duty consists of the performance of office or non-manual work directly related to management policies or general business operations of the company or the company’s customers [or the performance of functions in the administration of a school system, or educational establishment or institution, or a department or subdivision of the school system, in work directly related to the academic instruction or training carried on therein];

3.the employee’s work requires the exercise of discretion and independent judgment.

Comments

Source of Instruction: 29 C.F.R. §541.2(e)(2).

When to Use: The short test is used when the employee is paid a salary of at least $250.00 per week.

3. Professionals

§6:130 Long Test

The exemption claimed by the Defendant is the bona fide professional exemption. To receive the benefit of this exemption, the Defendant must prove by a preponderance of the evidence the following elements:

1.the employee’s primary duty consists of the performance of work requiring knowledge of an advanced type in a field of science customarily acquired by a prolonged course of specialized intellectual instruction and study [or work that is original and creative in character in a recognized field of artistic endeavor and the result of which depends primarily on the invention, imagination or talent of the employee] [or teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in a school system or educational establishment or institution by which he or she is employed] [or work that requires theoretical and practical application of highly specialized knowledge in computer systems analysis, programming and software engineering, and who is employed and engaged in these activities as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer software field];

2.the employee’s work requires the consistent exercise of discretion and judgment in its performance;

3.the employee’s work is predominantly intellectual and varied in character and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time;

4.the employee does not devote more than 20% of [his/her] hours worked in the work week to activities which are not an essential part of, and necessarily incident to, the work described in (a) through (c) above; and

5.the employee is compensated for services on a salary or fee basis at a rate not less than $170.00 per week exclusive of board, lodging or other facilities.

Comments

Source of Instruction: 29 C.F.R. §541.3.

§6:140 Short Test

The exemption claimed by the Defendant is the bona fide professional exemption. To receive the benefit of this exemption, the Defendant must prove by a preponderance of the evidence the following elements:

1.the employee earns a salary of at least $250.00 per week [or $200.00 per week if employed by other than the federal government in Puerto Rico, the Virgin Islands or American Samoa], exclusive of board, lodging or other facilities;

2.the employee’s primary duty consists of the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study [or teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which he or she is employed] [the employee’s work requires theoretical and practical application of highly specialized knowledge in computer systems analysis, programming and software engineering, and who is employed and engaged in these activities as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer software field]; and

3.the employee performs work requiring the consistent exercise of discretion and judgment [or work requiring invention, imagination, or talent in a recognized field of artistic endeavor].

Comments

Source of Instruction: 29 C.F.R. §541.3(e).

When to Use: This instruction is used when the employee earns a salary of at least $250.00 per week.

Note: The salary or fee requirement of the short tests does not apply to an employee engaged in computer-related work within 29 C.F.R. §541.3(a)(4) and who is compensated on an hourly basis at a rate in excess of six and one-half times the minimum wage. 29 C.F.R. §541.3(e).

4. Other Employees

§6:150 Outside Salesman

The exemption claimed by the Defendant is the outside salesman exemption. To receive the benefit of this exemption, the Defendant must prove by a preponderance of the evidence that:

1.the employee was employed for the purpose of making sales [or obtaining orders or contracts for services or for the use of facilities for which a fee would be paid by the client or customer];

2.the employee customarily and regularly worked away from [his/her] place of business; and

3.the employee did not spend more than 20% of [his/her] hours worked performing work normally performed by non-exempt employees of the company. Work performed incidental to and in conjunction with the employee’s own outside sales or solicitations, including incidental deliveries and collections, shall not be regarded as non-exempt work.

Comments

Source of Instruction: 29 C.F.R. §541.5.

5. Interrogatories

§6:160 Exemption Interrogatory

Did you find from a preponderance of the evidence that the position which the Plaintiff occupied was that of [insert specific exemption i.e., a professional, an executive, an administrator]?

Answer “Yes” or “No.”

Answer: _______

Comments

Source of Instruction:Dybach v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1564 n.4 (11th Cir. 1991).

C. Determining Employee’s Compensable Hours

§6:170 Attendance at Lectures, Meetings, and Training Programs

An employer is not required to pay an employee for time spent attending lectures, meetings, training programs or similar activities if the following four criteria are met:

1.attendance is outside of the employee’s regular working hours;

2.attendance is voluntary;

3.the course, lecture or meeting is not directly related to the employee’s job; and

4.the employee does not perform any productive work during such attendance.

Comments

Source of Instruction: 29 C.F.R. §785.27.

§6:180 Training Not Directly Related to Employee’s Job

The training is directly related to the employee’s job if it is designed to make the employee handle [his/her] job more effectively, rather than training him for another job, or a new or additional skill. Where the purpose of the training course is to prepare the employee for advancement through upgrading to a higher skill and is not intended to make the employee more efficient in [his/her] present job, the training is not considered directly related to the employee’s job even though the course incidentally improves [his/her] skill in doing [his/her] regular work.

Comments

Source of Instruction: 29 C.F.R. §785.29.

When to Use: Use this instruction in connection with the Hours Worked (Lectures, Meetings and Training Programs instruction).

§6:190 Voluntary Attendance at Lectures, Meetings and Training Programs

Attendance is not voluntary if it is required by the employer. Similarly, attendance is not voluntary if the employee is told or led to believe that [his/her] present working conditions or [his/her] continued employment would be negatively affected by non-attendance.

Comments

Source of Instruction: 29 C.F.R. §785.28.

When to Use: Use this instruction in conjunction with the Hours Worked (Lectures, Meetings and Training Programs instruction).

§6:200 Suffered or Permitted to Work

Work not requested but suffered or permitted is work time. If the employer knew or had reason to believe that the employee was continuing to work, then the time is work time and it is compensable.

Comments

Source of Instruction: 29 C.F.R. §785.11.

§6:210 Meal Periods

Under the Fair Labor Standards Act, bona fide meal periods are not compensable work time. A bona fide meal period ordinarily lasts 30 minutes or more. In contrast, short periods away from work, commonly known as break periods, are compensable work time.

To qualify as bona fide meal periods, the employee must be relieved from duty. An employee is relieved from duty when the employee’s time is not spent predominantly for the benefit of the employer. In other words, if during meal periods the employee’s time and attention are primarily occupied by a private or personal pursuit, such as relaxing or eating, then the employee is relieved from duty. On the other hand, if during meal periods the employee’s time or attention is taken up principally by work responsibilities that prevent the employee from comfortably and adequately passing the meal time, then the employee has not been relieved from duty.

An employee is not denied a bona fide meal period by being restricted to the employer’s premises, if the employee is otherwise relieved of duties during the meal period. An employee is not denied a bona fide meal period by being on-call with some limited duties, if the employee otherwise spends [his/her] time and attention predominantly in pursuit of personal or private interests.

Comments

Source of Instruction:Bates v. Dept. of Corrections of the State of Kansas, 81 F.3d 1008, 1010-11 (10th Cir. 1996); 29 C.F.R. §785.19.

§6:220 “Subject-to-Call” Time

Time spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee from effectively using the time for personal pursuits constitutes compensable hours of work. Time spent at home “subject-to-call” may or may not be compensable, depending on whether the restriction placed on the employee thereby effectively preclude that employee from using such time for [his/her] personal pursuits. Where the conditions placed on the employee’s activities are so restrictive that the employee cannot use the time effectively for personal pursuits, such time spent on-call is compensable. An employer is required to pay an employee for the time the employee spends working for the employer. Waiting time may be working time as well. An employee is working if [he/she] is spending [his/her] time for the employer’s benefit. The test is not whether an employee’s leisure is completely and totally curtailed, but rather whether it is so restricted that it cannot reasonably and effectively be utilized for the employee’s benefit.

If you find from a preponderance of the evidence that the Plaintiff has proved that any of [his/her] “subject-to-call” time was spent predominantly for the Defendant’s benefit, then your verdict should be for the Plaintiff. But if, on the other hand, you find from the evidence that the Plaintiff has not so proved, then your verdict should be for the Defendant.

Comments

Source of Instruction: May v. ArkansasForestry Comm’n, 993 F.2d 632, 638-39 (8th Cir. 1993); Bernard v. IBP, Inc., of Nebraska, 154 F.3d 259, 265 (5th Cir. 1998).

D. Determining Compensation Due Employee

§6:230 Commission Payments

Commissions are payments for hours worked and must be included in the regular hourly rate.

Comments

Source of Instruction: 29 C.F.R. §778.117.

§6:240 Employee Working at Two or More Rates

Where an employee in a single work week works two or more different types of work and receives different rates of pay for each type of work, [his/her] regular hourly rate is calculated by totaling [his/her] earnings for the work week, then dividing the total by the number of hours [he/she] worked at all jobs during the work week.

Comments

Source of Instruction: 29 C.F.R. §778.115.

§6:250 Monthly Salary

In order to calculate the regular hourly rate for an employee who is paid a monthly salary, the monthly salary must be reduced to its work week equivalent. A monthly salary can be reduced to its work week equivalent by multiplying the monthly salary by 12 and dividing by 52. Once the weekly wage is arrived at, the regular hourly rate of pay is calculated by dividing the weekly wage by the number of hours that the salary was intended to compensate.

Comments

Source of Instruction: 29 C.F.R. §778.112(b).

§6:260 Payments Other Than Cash

Where the employee received payment made in the form of goods or facilities which are regarded as part of wages, the reasonable cost to the employer or the fair value of such goods or of furnishing such facilities, must be included in the employee’s regular hourly rate.

Comments

Source of Instruction: 29 C.F.R. §778.116.

§6:270 Piece-Worker

When an employee is employed on a piece-rate basis, [his/her] regular hourly rate of pay is calculated by adding together [his/her] total earnings for the work week from piece rates and all other sources and any sums paid for waiting time or other hours worked. This amount is then divided by the number of hours worked in the week for which the compensation was paid, to determine the piece-worker’s “regular rate” for that week. For [his/her] overtime work, the piece-worker is entitled to be paid, in addition to [his/her] total weekly earnings at this regular rate for all hours worked, an amount equivalent to one-half [his/her] regular rate of pay multiplied by the number of hours worked in excess of 40 during the week. Only additional half-time pay is required where the employee has already received straight time compensation at piece-rates for all hours worked.

Comments

Source of Instruction: 29 C.F.R. §778.111(a).

§6:280 Weekly Commission

When the commission is paid on a weekly basis, it is added to the employee’s other earnings for that work week and the total earnings are divided by the total number of hours in the work week to obtain the employee’s regular hourly rate for that particular work week. The employee must then be paid extra compensation at one-half of that rate for each hour worked in that work week in excess of 40 hours.

Comments

Source of Instruction: 29 C.F. R. §778.118.

§6:290 Day Rates and Job Rates

If the employee is paid a flat sum for a day’s work or for doing a particular job, without regard to the total number of hours worked in the day or at the job, and if [he/she] receives no other form of compensation for services, [his/her] “regular rate” is determined by adding all the amounts [he/she] received at the day rates or job rates in the work week and dividing that amount by the total hours actually worked. [He/She] is then entitled to extra half-time pay at [his/her] “regular hourly rate” for all hours worked in excess of 40 during the work week.

Comments

Source of Instruction: 29 C.F.R. §778.112.

§6:300 Weekly Salary

If the employee receives a weekly salary, [his/her] regular hourly rate of pay is calculated by dividing the salary by the number of hours that the salary was intended to compensate. [He/She] is then entitled to time-and-a-half for all hours worked in excess of 40 during the work week.

Comments

Source of Instruction: 29 C.F.R. §778.113 (a).

§6:310 Travel Away From Home

Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is work time when it occurs during part of the employee’s work day. The employee is simply substituting travel for other duties. This travel time is considered hours worked on regular working days during normal working hours and also during corresponding hours on non-working days. If an employee regularly works from 9 a.m. to 5 p.m., Monday through Friday, the travel time during these hours is work time on Saturday and Sunday as well as on the other days.

Comments

Source of Instruction: 29 C.F.R. §785.39.

§6:320 Travel Time

An employee who travels from home before [his/her] regular work day and returns to [his/her] home at the end of the work day is engaged in ordinary home to work travel which is a normal part of employment. Normal travel from home to work is not work time and is not compensable.

Comments

Source of Instruction: 29 C.F.R. §785.35.

§6:330 Volunteer Work

Time spent working for public or charitable purposes at the employer’s request or under the employer’s direction or control, or while the employee is required to be on the employer’s premises, is working time and is compensable. However, time spent voluntarily in such activities outside of the employee’s normal working hours is not considered hours worked and is not compensable.

Comments

Source of Instruction: 29 C.F.R. §785.44.

§6:340 Work Performed While Traveling

Any work that an employee is required to perform while traveling must be counted as hours worked.

Comments

Source of Instruction: 29 C.F.R. §785.41.

§6:350 Overtime Interrogatory

Do you find from a preponderance of the evidence that the Plaintiff worked overtime for which [he/she] is entitled to receive compensation?

Answer “Yes” or “No.”

Answer: _______

Comments

Source of Instruction:Dybach v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1564 n.4 (11th Cir. 1991).

E. Other Defenses

§6:360 Statute of Limitations

The Plaintiff bears the burden of showing that the Defendant’s conduct was willful for purposes of the statute of limitations. An employer acts willfully, for purposes of establishing the proper statute of limitations, where [he/she] knows or shows reckless disregard for whether [his/her] actions are unlawful under the Fair Labor Standards Act. If the Defendant’s actions were willful, the three-year statute of limitations applies; otherwise, the two-year statute of limitations is applicable.

Comments

Source of Instruction:Bankston v. State of Illinois, 60 F.3d 1249, 1253-54 (7th Cir. 1995).

§6:370 Statute of Limitations—Interrogatory

Do you find by a preponderance of the evidence that Defendant’s actions were willful?

Answer “Yes” or “No.”

Answer: _______

Comments

Source of Instruction:Bankston v. State of Illinois, 60 F.3d 1249, 1254 (7th Cir. 1995).

§6:380 28-Day Work Period

Defendant has the burden of proving by a preponderance of the evidence that it is exempt from the Fair Labor Standards Act because it established a 28-day work period. In determining whether Defendant has established a 28-day work period under the Fair Labor Standards Act, you may consider evidence of whether Defendant actually adopted a 28-day work period. To be adopted, the work period must have been put into effective operation by Defendant.

Comments

Source of Instruction:Lamon v. City of Shawnee, Kansas, 972 F.2d 1145, 1153-52 (10th Cir. 1992); 29 U.S.C.A. §207(k).

F. Remedies

§6:390 Damages

The measure of damages is the difference between what the employee should have been paid under the Fair Labor Standards Act and the amount that [he/she] was actually paid.

In the event that you are convinced by the evidence that the Defendant did violate the Fair Labor Standards Act, then you must determine the amount of damages the Plaintiff has suffered. With regard to Plaintiff’s allegations of Fair Labor Standards Act violations, you must determine the difference between what the Plaintiff was paid and what you, as jurors, decide that [he/she] should have been paid. That difference is the amount of damages.

In considering the issue of the Plaintiff’s damages, you are instructed that you should assess the amount you find to be justified by a preponderance of the evidence as full, just, and reasonable compensation for the Plaintiff’s damages, no more, and no less. Damages are not allowed as a punishment and cannot be imposed or increased to penalize the Defendant. Damages also do not include sums for court costs or attorney fees. Neither can damages be based on speculation or guesswork because only actual damages, what the law calls compensatory damages, can be recovered.

Comments

Source of Instruction: 29 U.S.C. §216(b); Pattern Jury Instructions, Federal Claims Instruction No. 9.1 and Damages Instruction No. 1.1 (11th Cir. 1990 ed.); Pattern Jury Instructions, Labor and Employment Claims, No. 11.1 (5th Cir. 1992 ed.).

§6:400 Damages Interrogatory

If your answer to interrogatory number _______ was “Yes” then answer this interrogatory.

If Plaintiff worked overtime for which [he/she] is entitled to receive compensation, what amount is [he/she] entitled to receive?

Answer: _______

Comments

Source of Instruction:Dybach v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1564 n.4 (11th Cir. 1991).


Todd J. McNamara is a partner with the firm of McNamara, Roseman, Martinez & Kazmierski LLP in Denver, Colorado. With over 28 years of experience, Mr. McNamara practices exclusively in the area of employment law, ERISA and class actions, typically representing employees. He serves on the Board of Directors for the Plaintiffs Employment Lawyers Association in Colorado. He has been listed in Colorado Super Lawyers, since its inception, as well as Martindale Hubbell’s Bar Register of Pre Eminent Lawyers. Mr. McNamara is also listed in Best Lawyers in America under Labor and Employment.

J. Alfred Southerland is a shareholder in the Houston,Texas, office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (“Ogletree Deakins”). With over 20 years of experience, Mr. Southerland’s practice focuses on labor and employment-related litigation before state and federal courts and agencies.  Mr. Southerland is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.  Mr. Southerland frequently speaks at employment-related seminars and has written and lectured extensively on labor and employment issues.

They are the authors of Federal Employment Jury Instructions, from which this article is excerpted.