In recent years the number of federal court actions filed under the Fair Labor Standards Act (FLSA) in some New York jurisdictions has outpaced national filings by leaps and bounds. Among 94 federal district courts, two courts in New York State rank among the top five in the nation in the number of FLSA cases filed, according to the New York Law Journal. New York's Southern District (Manhattan, Bronx, Westchester, Rockland, Orange, Dutchess and Putnam counties) was third in the nation while New York's Eastern District (Brooklyn, Queens, Staten Island and Long Island) ranked fifth.

Best known for establishing the federal minimum wage and requiring overtime pay for millions of workers in private and public employment across the nation, the FLSA also prohibits employers from basing pay on gender and requires accommodations for nursing mothers (What does the FLSA require?).

Some attribute the recent surge in FLSA litigation to the lucrative damages available to successful plaintiffs. If an employee wins the lawsuit, he or she is entitled to unpaid wages and overtime compensation and may also recover liquidated damages (equal to the unpaid wages and overtime) as well as attorney fees and costs. Recently, the U.S. District Court for the Eastern District of New York held that double damages (liquidated damages) are the norm and that single damages are the exception (Solis v. SCA Rest. Corp., 2013).

There can be other consequences for employers deemed to have violated the FLSA. Willful violations may be prosecuted criminally and fined up to $10,000. A second conviction may result in imprisonment.

Employers who willfully or repeatedly violate the minimum wage or overtime pay requirement are subject to civil money penalties of up to $1,100 per violation. The U.S. Department of Labor may also bring suit for back pay and an equal amount in liquidated damages.

The U.S. Supreme Court has found conduct to be willful if an employer "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute" (McLaughlin v. Richland Shoe Co., 1988). The U.S. District Court for the Southern District of New York has found that "willfulness cannot be found where the employer acted negligently or assumed in good faith, but incorrectly, that its conduct complied with the FLSA" (El v. Potter, 2004).

Who is covered by the FLSA?

Examples of public school employees typically covered under the statute include custodians, clerical workers, food service employees, maintenance workers, and security workers. There are various exemptions for executives, administrative staff, professionals, and others. Examples of public school employees considered "exempt" from minimum wage requirements, overtime compensation and time recording requirements include superintendents, assistant superintendents, supervisors, directors, principals, assistant principals and teachers.

The U.S. Department of Labor provides a test to determine whether an employee is exempt. If you are unsure of whether an employee is exempt, contact your legal counsel or BOCES for assistance.

How can employers avoid liability?

Familiarity with the law is essential for employers to avoid violating its requirements. To avoid common and costly pitfalls, school districts must:

• Correctly classify employees. The U.S. Department of Labor provides a test to determine whether an employee is exempt under the FLSA. Whether an employee is salaried is not a consideration for determining his/her exempt status. The U.S. Supreme Court has held that the employer carries the burden to show that an employee is exempt (Corning Glass Works v. Brennan, 1974).
• Keep accurate time records. If an employer fails to keep records, the employer has the burden to disprove the hours the employee claims to have worked, as the Second Circuit U.S. Court of Appeals has ruled (Reich v. S. New England Telecommunications Corp., 1997).
• Correctly calculate hours worked. Hours worked means all time the employee worked. This includes travel time between job sites; time spent if an employee is asked to run errands during lunch; time spent if an employee takes work home; coffee breaks and rest periods; time spent by an employee waiting for work; rework performed by an employee, even if done voluntarily; time when an employee voluntarily arrives early or leaves late; and even unauthorized time. Meal periods are not included as time worked and do not need to be compensated if the meal period exceeds 30 minutes and the employee is completely relieved from his or her duties.

Notably, it is not lawful for an employer and employee to agree to waive the employee's rights under the FLSA. For example, an employee's willingness to work extra hours without pay does not exempt the employer from the law's overtime pay requirements.

Also, school district officials should understand that the law's requirements regarding overtime and other items must be followed regardless of any employment policies to the contrary. For instance, suppose a district's maintenance department informs employees in a memo that it is eliminating overtime as a cost-cutting measure. If a nonexempt custodian violates the policy and works overtime as defined by the FLSA, the district may discipline the employee for the violation but still must pay him or her for the overtime hours worked.

Another issue relevant to school districts is use of volunteers. Volunteers are not considered employees for purposes of coverage under the FLSA.  The U.S. Department of Labor defines a volunteer as an individual who performs hours for "civic, charitable, or humanitarian reasons" and does so "without promise, expectation or receipt of compensation for services rendered." There are no restrictions or limitations on the types of services a volunteer may perform. Mentoring and participation in charitable or educational programs may be considered volunteer activities, according to the Southern District (Brown v. New York City Dep't of Educ., 2012). If challenged, the court will examine the entire facts and circumstances surrounding the services to determine whether the individual was a volunteer.

Members of the New York State Association of School Attorneys represent school boards and school districts.  This article was written by Katherine E. Gavett of Ferrara Fiorenza Larrison Barrett & Reitz, P.C.