Wage and Hour Update

• Jurisdiction: United States,Federal,California
• Author: By Lois M. Kosch
• Publication year: 2016
• Citation: Vol. 30 No. 2

Wage and Hour Update

By Lois M. Kosch

Lois M. Kosch is a partner at Wilson Turner Kosmo. She specializes in counseling and representing employers in all aspects of employment law and litigation. Ms. Kosch is a former member of the Labor and Employment Law Section's Executive Committee.

Firefighters Not Entitled to Pay for Transporting Gear

Balestrieri v. Menlo Park Fire Protection Dist., 800 F.3d 1094 (9th Cir. 2015)

Firefighters filed an action under the Fair Labor Standards Act (FLSA) seeking to be paid overtime for time spent picking up and dropping off gear at their home stations in non-emergency situations. They were permitted to take the gear issued by their employer home, although most opted to leave it at their home station. Occasionally, a firefighter volunteered or was required to take a shift at a station other than the home station. If they volunteered to be called to cover shifts when another station was short-staffed, they were expected to report to the temporary duty station at the regular reporting time. If they needed to stop by their home stations to pick up their gear, they were not compensated for either the time that took or their commute time. In contrast, when firefighters were called to report to a visiting station because of an emergency, they were paid for the time spent picking up gear and for their commute time.

The district court granted summary judgment for the employer. The Ninth Circuit affirmed, holding that stopping by the home station to pick up gear is not "indispensable" to a firefighter's principal activities. Such activity is "preliminary" and thus not compensable under the FLSA and the U.S. Supreme Court's recent decision in Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. ___, 135 S. Ct. 513 (2014).

The court noted that although the firefighters are free to take their gear home, most simply choose not to do so. That choice was therefore personal to the firefighter, and not "integral" to the employment relationship.

The firefighters also argued that payout of leave time should be included in calculating their regular rate of pay. The Ninth Circuit rejected this argument because the payout was not a "bonus," but rather payment for leave time not used.

Residential Care Facility Employees' Waiver of Meal Break Not Subject to Revocation Right

Palacio v. Jan & Gail's Care Homes, Inc., 242 Cal. App. 4th 1133 (2015)

Plaintiff worked at a 24-hour residential health care facility for developmentally...