Tag Archives: Regular Workweek

D.Mass.: Offsets to Unpaid Overtime, Pursuant to § 207(h)(2) of FLSA, Attributable Only to Singular Workweeks in Which Both Premiums and Overtime Earned Simultaneously

Rudy v. City of Lowell

This case was before court on defendant’s motion for summary judgment, as to the methodology applicable to calculate plaintiff’s damages.  The interesting, but rarely raised issue: to the extent that the employer is entitled to an offset for certain premium compensation paid to the employee, to what extent can that offset reduce the unpaid overtime wage damages sought by the employee?  Holding that such offsets are only applicable in singular workweeks (i.e. they may only be taken in the week in which the payment giving rise to the offset occurred), the court explained: 

Section 207(h) (2) of the FLSA provides that extra compensation paid as described in paragraphs (5), (6), and (7) of subsection (e) of this section shall be creditable toward overtime compensation payable pursuant to this section.

29 U.S.C. § 207(h)(2). Only the “premium” portion of the contractual overtime rate (the extra one-half on top of the regular rate) may be used to offset the defendant’s statutory overtime liability. O’Brien v. Town of Agawam, 350 F.3d 279, 289 (1st Cir.2003) (“O’Brien I” ).

Here, the CBA allows employees to treat certain non-work days such as vacation, sick and personal days as hours actually worked for the purpose of determining overtime hours. The City also pays some workers time and one-half for working on holidays. The parties do not dispute that the extra compensation provided for in the plaintiffs’ CBA falls within the compensation described in subsection (5), (6) and (7) and can be used to offset defendant’s underpayment, pursuant to § 207(h)(2).

The parties do dispute, however, whether premium compensation earned in one week can be used to offset an underpayment in a different week. Plaintiffs argue that their damages for unpaid overtime should be calculated on a workweek basis and that any offsets pursuant to § 207(h)(2) may only be attributed to the singular workweeks in which the premiums and overtime were earned. In other words, an underpayment one week cannot be offset by a premium payment made in a different week. The defendant contends, to the contrary, that it is entitled to a “cumulative offset”, consisting of all premium payments, against any FLSA overtime it owes, regardless of when the premium payments were earned or made.

The FLSA does not provide an explicit answer to this difference of interpretation and the United States Circuit Courts have taken divergent positions. Some courts have held that § 207(h) offsets should be calculated on a workweek basis. Herman v. Fabri-Centers of Am., Inc., 308 F.3d 580, 585-93 (6th Cir.2002); Howard v. City of Springfield, 274 F.3d 1141, 1147-49 (7th Cir.2001); Roland Elec. Co. v. Black, 163 F.2d 417, 420 (4th Cir.1947); Conzo v. City of New York, 667 F.Supp.2d 279, 291 (S.D.N.Y.2009); Bell v. Iowa Turkey Growers Co-op., 407 F.Supp.2d 1051, 1063 (S.D.Iowa 2006); Nolan v. City of Chicago, 125 F.2d 324, 331 (N.D.Ill.2000). Other courts have allowed defendants to apply a cumulative offset. Singer v. City of Waco, 324 F.3d 813, 826-28 (5th Cir.2003); Kohlheim v. Glynn County, 915 F.2d 1473, 1481 (11th Cir.1990).

The First Circuit has not directly addressed this issue but other sessions in this District have. In O’Brien v. Town of Agawam, United States District Judge Michael A. Ponsor addressed facts analogous to those at bar and held that the employer could apply a cumulative offset. 491 F.Supp.2d 170, 176 (D.Mass.2007) (“O’Brien II” ). The Court surmised that the First Circuit would hold accordingly given its holding in Lupien v. City of Marlborough. Id. at 175. In Lupien, the employer’s practice of compensating employees for overtime by use of compensatory time (“comp time”), instead of in cash, violated the FLSA. 387 F.3d 83 (1st Cir.2004). With respect to damages, the First Circuit held that the employer did not have to pay its employees for overtime hours for which the employee had used comp time, regardless of when the employee used the comp time. The Court reasoned that paying the employees for overtime hours for which they had used comp time would result in double payment for the same overtime hours. In Murphy v. Town of Natick, another case analogous to this one, United States District Judge Richard G. Stearns agreed with the holding in O’Brien II and also allowed defendants to apply a cumulative offset. 516 F.Supp.2d 153, 160-61 (D.Mass.2007).

Although the two cases in this District are directly analogous to this case, the Court disagrees with them with respect to their interpretation of the FLSA and of Lupien. A further analysis of the Lupien case, the purpose of the FLSA and its interpretation by the Department of Labor (“the DOL”) and the First Circuit’s language in O’Brien I all undermine the position adopted by the courts in O’Brien II and Murphy. Rather, they lead to the conclusion that § 207(h)(2) offsets should be calculated on a workweek basis for the following reasons:

1. This case is distinguishable from Lupien and other First Circuit case law indicates support for a workweek offset model. Lupien dealt with an application of § 207(o) (regulating the use of compensatory time), not § 207(h). In fact, § 207(h) is not referred to in that opinion. Furthermore, here, the employees were not given the option of taking comp time rather than overtime payments. Thus, there is no risk in our case, as there was in Lupien, that the plaintiffs will be compensated twice for the same hours. Thus, the Court concludes that the First Circuit’s decision in Lupien does not indicate how it would decide the question at bar.

More on point is the First Circuit’s discussion of § 207(h)(2) in O’Brien I, in which it stated that

The regulations specifically explain how to treat such mid-workweek contractual overtime payments under the Act: only the premium portion of the contractual overtime rate (that is, the amount in excess of the employee’s regular rate) is deemed “overtime” pay and may be offset against any statutory overtime liability in the same week. O’Brien I, 350 F.3d at 289 (citing 29 C.F.R. §§ 778.201(a), 202(a)) (emphasis added). Thus, although not resolving the offset issue in that decision, the First Circuit conveyed its inclination by specifying that offsets pursuant to § 207(h)(2) would apply “in the same week”.

2. The FLSA overtime requirement uses a single workweek as its basic unit of measurement. Scott v. City of New York, 592 F.Supp.2d 475, 484 (S.D.N.Y.2008). Section 207(a)(1) sets forth the basic overtime rule:

no employer shall employ any of his employees … for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1).

The focus on the unitary workweek is prevalent throughout § 207 and the DOL’s interpretation of that section. For example, 29 C.F.R. § 778.103 directs employers to calculate overtime liability on a weekly basis. Further, 29 C.F.R. § 778.104 provides that “[t]he Act takes a single workweek as its standard” and an employer cannot average the number of hours an employee worked in two weeks in order to avoid paying overtime:

[I]f an employee works 30 hours one week and 50 hours the next, he must receive overtime compensation for the overtime hours worked beyond the applicable maximum in the second week, even though the average number of hours worked in the 2 weeks is 40.

It is clear from § 778.104 that cumulative offsets were not contemplated by the DOL. In addition, where the single workweek model is problematic, i.e. when applied to firefighters and law enforcement officers, the FLSA includes a very specific and limited exception. See 29 U.S.C. § 207(k).

With regard to the exact issue before the Court, 29 C.F.R. § 778.202(c) explains that credits pursuant to § 207(h) may be given for overtime due “in that workweek”. See Howard, 274 F.3d at 1148-49; Conzo, 667 F.Supp.2d at 290. Finally, and perhaps most importantly, the DOL has also issued an opinion letter stating that surplus overtime premium payments, which may be credited against overtime1 pay pursuant to section 7(h) of FLSA, may not be carried forward or applied retroactively to satisfy an employer’s overtime pay obligation in future or past pay periods.

Letter from Herbert J. Cohen, Deputy Administrator, U.S. Dep’t of Labor, WH-526, 1985 WL 304329 (Dec. 23, 1985).

3. Overtime payments are intended to be paid as soon as is practicable. Although they are not entitled to deference by this Court, several of the DOL’s official interpretations of § 207 demonstrate the FLSA’s emphasis on ensuring that overtime payments are made soon after they are earned. Howard, 274 F.3d at 1148. For instance, 29 C.F.R. § 778.106 provides that overtime payments need not be paid weekly but must be paid as soon as is practicable:

Payment may not be delayed for a period longer than is reasonably necessary for the employer to compute and arrange for payment of the amount due and in no event may payment be delayed beyond the next payday after such computation can be made. See also Nolan, 125 F.Supp.2d at 332 (discussing 29 C.F.R. § 778.106 and holding that offsets for overtime paid apply on a pay period basis).

The reason for requiring employers to calculate and make overtime payments as soon as practicable is obvious: employees are entitled to know how much they will be paid and to prompt payment of what they have earned. As poignantly stated by the Seventh Circuit in Howard v. City of Springfield, if § 207(h)(2) were to permit a cumulative offset, employers could withhold overtime earnings in order to offset them against potential “short” weeks in the future. 274 F.3d at 1148-49. Under such a model, an employee’s overtime payments could be put on hold indefinitely until the employer is either willing or compelled to pay. That outcome is not only illogical but also contradicts the FLSA’s focus on the workweek as a unit and its concern with prompt overtime payments.

In fact, this case uniquely illustrates why a workweek offset is appropriate: if the City had correctly calculated its overtime rate and applied the § 207(h)(2) offsets contemporaneously, it would not have been able to apply those offsets to obligations incurred one or two years later. See id. at 1148. The workweek method of calculating offsets most closely reproduces what the parties would be entitled to had there been no error in the City’s initial computation of its overtime liability. See Nolan, 125 F.Supp.2d at 333.

4. The purpose of the FLSA, to protect workers from “excessive work hours and substandard wages”, is best served by the workweek offset model. Howard, 274 F.3d at 1148; see Herman, 308 F.3d at 585-93. This was clearly articulated in Scott v. City of New York, in which the DOL advocated for the workweek offset model. 592 F.Supp.2d at 484. The District Court in that case found that “both the structure of the Act and its legislative history lend credence to DoL’s interpretation.” Id. The Court explained how a cumulative offset undermines the protections afforded by the FLSA:

The [overtime] requirement protects workers from the imposition of excessive hours by placing an immediate cost on the employer. If employers were allowed to bank credit for contractual overtime against future obligations to pay statutory overtime, it would place workers in the employer’s debt[.] Id. In essence, it would require employees to work large blocks of overtime without premium compensation.

5. Finally, the arguments for applying a cumulative offset are unpersuasive. The City claims that a workweek offset will result in a windfall to the employees but that seems implausible given the fact that, if the City had been correctly calculating its overtime rate and applying the § 207(h)(2) offset at every pay period, the offset would have been applied only to the overtime liability in that pay period. Moreover, the circuit court cases cited by the City do not provide support for a cumulative offset. In Singer v. City of Waco, 324 F.3d at 827, the Fifth Circuit held that § 207(h) was inapplicable, while in Kohlheim v. Glynn County, 915 F.2d at 1481, the Eleventh Circuit did not even explain why it allowed a cumulative offset.

In summary, the Court finds that the plaintiffs’ method of calculating damages is most compatible with both the language and purpose of the FLSA’s overtime requirements and the First Circuit’s understanding of those requirements. As such, the plaintiffs’ damages for unpaid overtime should be calculated on a workweek basis and any offsets pursuant to § 207(h)(2) should be attributed only to the singular workweeks in which both premiums and overtime were earned. The Court concludes that only the premium portions of the extra payments, i.e. the extra one-half of the regular rate, may be used to offset the City’s overtime liability. O’Brien II, 491 F.Supp.2d at 176.”

Click Rudy v. City of Lowell to read the entire order.

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D.Md.: Training Time Outside Of Regular Work Hours Not Compensable, Because It Was Primarily For The Benefit Of The Employees Not The Employer

Carter v. Mayor & City Council of Baltimore City

Before the Court was Defendants’ Motion for Summary Judgment.  This was the second such Motion, because the Court had denied the prior application with leave to further establish the factual record.  Plaintiffs claimed that they were entitled to be paid for certain time spent training in Defendants’ CRT Apprentice program outside of their regular workweek.  The Court disagreed, granting Defendants’ Motion.  As discussed below, the Court reasoned that since the primary benefit of the training was to the Plaintiffs, such time spent training was not compensable under the FLSA or Portal-to-Portal Act.

Discussing the facts pertinent to its inquiry the Court explained:

“Plaintiffs are current or former apprentices in a Baltimore City Fire Department (BCFD) three-year Firefighter/Paramedic Apprenticeship Program. Plaintiffs allege that as part of their apprenticeship they were required to attend class and perform on-the-job practical training on an ambulance and in the hospital without compensation in violation of the FLSA.

It is undisputed that one of the duties of a Firefighter/Paramedic is to provide emergency medical care, including Advanced Life Support. In order to provide Advanced Life Support, Maryland state law requires licensure as a Cardiac Rescue Technician (CRT). Md.Code Regs. 30.01.01.20. State law designates the State Emergency Medical Services Board (EMS Board) to approve CRT courses, conduct examinations, and issue CRT licenses. Md.Code Ann., Educ. § 13-516(a)(2) [a portion of the facts is excluded here]…

The Fire Department required remedial training for apprentices when they failed the required national registry EMT test or any of the exams during the CRT-I course. In addition, if students failed the National Registry exam three times, the National Registry required the students to take a 48 hour review before it would allow them to re-take the exam.

The Maryland Institute for Emergency Medical Services Systems issued regulations governing the content of ALS education programs. Md.Code Regs. 30.04.02.01 et seq. In addition to classroom training, ALS students must also complete a supervised clinical experience, which includes the practice of skills within clinical education facilities, and a supervised field internship, which includes the practice of skills while functioning in a prehospital ALS environment. Id. 30.04.02.05. During the clinical and field training, the MIEMSS regulations require that the student is supervised by clinical and field preceptors. Id. 30.04.02.06. In the field portion of the training, the ratio of students to preceptors must be one to one. Id. 30.04.02.06(F)(2).

Upon entering the fire academy, the apprentices signed an Apprenticeship Agreement in which they agreed to the terms of the Apprenticeship Standards filed with the Maryland Apprenticeship and Training Council. The Standards include a requirement that apprentices will complete a minimum of 144 hours per year of related instruction and that these hours will not be considered as hours worked when given outside regular working hours. In addition to the CRT-I course, apprentices were required to undergo enhanced training, including courses in pump operations, aerial operations, hazmat tech, arson awareness/sprinkler, and rescue technician.

During the second portion of the apprentices’ training, they worked an eight day cycle, with 4 days on and 4 days off. Training to obtain their CRT licensure was sometimes scheduled on the apprentices’ days off. Apprentices were not compensated during the off-duty training times. Plaintiffs contend that they should have been compensated for this off-duty training time under the FLSA.”

Discussing the relevant law and concluding that Plaintiffs’ after-hours training was not compensable under the FLSA, the Court stated:

“Plaintiffs allege that the City violated this provision by refusing to pay them overtime for the hours spent in training outside their regular workweek.

Cases analyzing whether training mandated by employers or potential employers should be compensable as hours worked include cases in which the potential employer requires the completion of training before an individual may be hired and cases in which the individual is an apprentice or already an employee and required to complete training as part of the apprenticeship or as an agreed upon condition to hiring. The seminal cases relating to training and the FLSA are the companion cases, Walling v. Portland Terminal Co., 330 U.S. 148 (1947) and Walling v. Nashville, Chattanooga and St. Louis Ry., 330 U.S. 158 (1947). In Portland Terminal, the defendant railroad had required the completion of a course of practical training before individuals could be hired as prospective yard brakemen. 330 U.S. at 149. The course involved a progressive increase in the trainees’ ability to act as a brakeman beginning with observing routine activities through gradually conducting the actual work of a brakeman under close scrutiny. Id. The Supreme Court noted that the activities of the trainee did not displace any of the regular employees, who were required to supervise any actual work done by the trainees, and did not expedite the company business, but may at times have impeded it. Id. at 149-50. Once certified as competent, the individuals who completed the training comprised a pool of qualified workmen available to the railroad when needed. Id. at 150. The Supreme Court focused on whether the trainees were to be considered employees and thus protected by the FLSA. Id. The FLSA defines employ as “to suffer or permit to work.” Id. at 152; 29 U.S.C. § 203(g). Despite the broad definition, the Supreme Court held that it could not “be interpreted so as to make a person whose work serves only his own interest an employee of another person who gives him aid and instruction.” Portland Terminal, 330 U.S. at 152. The Court compared the training at issue to courses in railroading in a public or private vocational school, in which “it could not be reasonably suggested that [the students] were employees of the railroad merely because the school’s graduates would constitute a labor pool for the railroad.” Id. at 152-53. Thus, the Court held that when the railroads received no “immediate advantage” from the work done by the trainees, the trainees were not employees under the FLSA. Id. at 153.

In analyzing Portland Terminal, the Fourth Circuit has concluded that the general test used to determine if an employee is entitled to the protections of the Act is “whether the employee or the employer is the primary beneficiary of the trainees’ labor.” McLaughlin v. Ensley, 877 F.2d 1207, 1209 (4th Cir.1989). In McLaughlin, the defendant owned a snack foods distribution business in which he required new hires to spend five days travelling an ordinary route with an experienced routeman as training before they were hired. 877 F.2d at 1208. The trainees loaded and unloaded the delivery truck, restocked stores with the defendants products, were given instruction on how to drive the trucks, were introduced to retailers, were taught basic snack food vending maintenance, and occasionally helped in preparing orders of goods with financial exchanges. Id. The court found that, unlike in Portland Terminal, the prospective employees were simply helping to service a route, and the instruction they received did not rise to the level that one would receive in a general, vocational course in outside salesmanship. Id. at 1210. Instead, the court found that the trainees were taught only simple, specific job functions related to the defendant’s business. Id. For those reasons, the court concluded that the trainees were entitled to be considered covered employees under the FLSA. Id. Compare Reich v. Parker Fire Protection District, 992 F.2d 1023 (10th Cir.1993) (holding that firefighter trainees were not employees because they obtained training comparable to a vocational school and the defendant was not immediately benefited by the trainees’ activities as their training activities were supervised and they did not assume the duties of career firefighters; the benefit to the defendant from the plaintiffs’ supervised training activities was de minimis ).

Where trainees are already employees, the Courts look also to the Portal-to-Portal Act, which provides that an employer need not pay an employee for activities that are “preliminary or postliminary” to the principal activity or activities the employee is employed to perform. 29 U.S.C. § 254(a)(2). The Supreme Court has interpreted the mandate of the Portal-to-Portal Act to mean “that activities performed either before or after the regular work shift, on or off the production line, are compensable … if those activities are an integral and indispensable part of the principal activities for which covered workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256 (1956).

The most oft-cited case applying the “preliminary or postliminary” test to training activities is Ballou v. General Electric Co. 433 F.2d 109 (1st Cir.1970). In Ballou, the First Circuit held that the classroom training required of the defendant’s apprentices taking place outside of working hours was neither integral nor indispensable to the apprentices’ principal activity, which was the work that took place during their regular 40 hour work-training week. Id. at 112. The court looked to Portland Terminal and found that if the defendant had not employed the appellants as workers, but provided only training programs that they were required to complete successfully before they could be employed as journeymen, the apprentices would be entitled to no compensation. Id. Thus, the court concluded that “the employer’s decision to hire its employees before the completion of training did not obligate it to compensate them for the time spent in their status as students after their hiring.” Bienkowski v. Northeastern Univ., 285 F.3d 138, 141 (1st Cir.2002) (citing Ballou, 433 F.2d at 112).Accord Chao v. Tradesman Int’l, Inc., 310 F.3d 904, 910 (6th Cir.2002) (“Therefore, we agree with the First Circuit that the defendant employer should not be made liable for overtime pay for time its employees spend as students, rather than as workers…. We do not see why the employer should be penalized for allowing a potential employee to begin earning income while striving to meet certain prerequisites for the job when the employer could just as easily withhold employment until successful completion of all the job requirements.”).

In Bienkowski, the First Circuit applied its analysis in Ballou to facts similar to the facts found here. 285 F.3d at 141. In Bienkowski, the defendant hired the plaintiffs as probationary police officers with a requirement that they receive and retain certification as Massachusetts-registered EMTs within one year of their appointment. Id. at 139. At the time of hire, the plaintiffs signed a letter acknowledging the requirement. Id. The training, as required pursuant to Massachusetts statutes, regulations, and Department of Public Health standards, required approximately 110 hours of classroom work, as well as 10 hours of in-hospital evaluation time, practical exams, and written exams. Id. Although the plaintiffs could have taken the EMT courses at various locations throughout Massachusetts, they chose to take the course at Northeastern, where they were entitled to tuition reimbursement. Id. For the most part, the course requirements took place outside of the plaintiffs’ working hours. Id. at 140. Prior to receiving their certification, the plaintiffs were prohibited from performing EMT work, but following their certification, they regularly used their skills on the job. Id. The Court held that it would not hold the defendant “liable for overtime pay for time its employees spend as students, rather than as workers, simply because [the defendant] decided to hire its employees on a probationary basis until they complete the training required to hold the job on a permanent basis.” Id. at 141.

Defendants have articulated and Plaintiffs have not disagreed that the classes and on-the-job training required of the apprentices can be broken down into four categories: 1) initial classroom training to obtain CRT licensure; 2) classroom enhanced training; 3) clinical training with an ambulance medic team and in the hospital to obtain CRT licensure; and 4) mandatory repeat classroom training to obtain CRT licensure when a student has failed any of the required exams. Under either the “primary beneficiary” test of McLaughlin or the “integral and indispensable part of the principal activities” test of Steiner, the hours spent in all four categories of training are not compensable as hours worked under the FLSA.

All of the classroom and practical training required to obtain the CRT license, the classroom enhanced training, and the repeat classroom training are no different than that found in Portland Terminal, Ballou, and Bienkowski. Plaintiffs are apprentices in an apprenticeship program approved by the Department of Labor and as part of that program were required to take the CRT Training, which required both classroom and clinical training. As the CRT license was required in order for Plaintiffs to conduct their duties as firefighters/paramedics, the City could have required the Plaintiffs to obtain the license before hiring them. In fact, similar training is provided at Baltimore City Community College and Community College of Baltimore County. Instead the city allowed Plaintiffs to obtain the license while they were concurrently employed by the city, and funded the training. Although the City ultimately benefitted from Plaintiffs obtaining the CRT license in that it then had a pool of employees certified to conduct ALS, Plaintiffs obtained a license fully transferrable to their employment with any other employer that required the ability to provide Advanced Life Support. Thus, as in Portland Terminal and unlike in McLaughlin, Plaintiffs were the primary beneficiaries of the training. Moreover, as Plaintiffs were not able to perform any of the ALS duties until they obtained their license, as in Bienkowski the training was not an integral and indispensable part of their paid work duties during the period of their training.

This Court’s holding is supported by Department of labor regulations interpreting the FLSA that exclude from the computation of “hours worked” the time spent in certain kinds of training.  One such regulation is found at 29 C.F.R. § 553.226(b).

(b) While time spent in attending training required by an employer is normally considered compensable hours of work, following are situations where time spent by employees of State and local governments in required training is considered to be noncompensable:

(1) Attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular governmental jurisdiction (e.g., certification of public and private emergency rescue workers), does not constitute compensable hours of work for public employees within that jurisdiction and subordinate jurisdictions.

(2) Attendance outside of regular working hours at specialized or follow-up training, which is required for certification of employees of a governmental jurisdiction by law of a higher level of government (e.g., where a State or county law imposes a training obligation on city employees), does not constitute compensable hours of work.

(3) Time spent in the training described in paragraphs (b)(1) or (2) of this section is not compensable, even if all or part of the costs of the training is borne by the employer.

A 1999 Department of Labor Opinion letter applies this regulation to facts identical to those found here.

Q.1. As a condition of employment, firefighters for County A must have current EMT (emergency medical training) certification. Although this certification is granted through the state, the state does not require the fire fighters have the certification. However, since City A requires it, the training is not “voluntary.” Under these circumstances, must the EMT training that is required to maintain this certification be counted as hours worked if the training takes place during non-working hours?

A.1. No. While time spent in attending training required by an employer is normally considered compensable hours of work, attendance outside of regular working hours at specialized or follow-up training which is required by law for certification of employees of a governmental jurisdiction, does not constitute hours of work under the FLSA. See Section 553.226 of Regulations, 29 CFR Part 553.  Sept. 30, 1999, Dept. of Labor Op. Letter, 1999 WL 1788163.

In addition, the Department of Labor has issued a regulation as to apprenticeship training.

[T]ime spent in an organized program of related, supplemental instruction by employees working under bona fide apprenticeship programs may be excluded from working time if…. (b) such time does not involve productive work or the performance of the apprentice’s regular duties. If the above criteria are met the time spent in such related instruction shall not be counted as hours worked unless the written agreement specifically provides that it is hours worked. The mere payment or agreement to pay for time spent in related instruction does not constitute an agreement that it is hours worked.  29 C.F.R. § 785.32.

Plaintiffs do not contest that the initial CRT training and the enhanced training are not compensable under these regulations. They argue, however, that although the clinical training is a required component of the CRT-I course, it was compensable time because it was productive work and constituted performance of their regular duties. The undisputed evidence shows that a regular medic unit is staffed by two individuals, which could be two ALS providers or an ALS provider and a BLS provider. When Plaintiffs were assigned to a medic unit as part of their training, there was always an ALS provider and another BLS provider; the trainee would then be a third person on the team. Plaintiffs state in their opposition that “[i]n the experience of many Plaintiffs, under the guise of ‘training,’ only one person, the [ALS] preceptor-was paid. Therefore, a paid position on the medic unit was eliminated during the training, as the Defendants filled it with two unpaid apprentices.” Opp. at 8.

Contrary to Plaintiffs’ statements in their opposition, however, neither of the provided affidavits establishes that unpaid trainees replaced a paid BLS provider. Moreover, they have not established that any benefit the City may have received from the trainee’s presence is anything more than de minimis or that it outweighed the benefit to the trainee in completing a required component of the CRT training. One affiant testified that the other BLS provider was paid and drove the ambulance while he, as the trainee, sat in the back of the ambulance. Stoakley Aff. ¶ 4. Notably, the second affiant said nothing regarding whether the other BLS provider was paid and said nothing about whether he ever drove the ambulance while he was on a training run. Bonovich Aff. ¶ 4. Thus, Plaintiffs have provided no reason to believe that when they were conducting training runs they were not able to work with the ALS provider in a training capacity for the entire period.

Similarly, the time spent by the trainees in the hospital was also a required component of the CRT training. Plaintiffs’ affidavits confirm that all of the Plaintiffs’ activities in the hospital were supervised. They have not shown, however, that their activities were part of their regular duties or any more productive than the supervised work done by trainees in Portland Terminal. Thus, the clinical training does not constitute compensable hours worked under the FLSA and the Portal-to-Portal Act.

Plaintiffs also argue that the duplicative classroom training, required when Plaintiffs did not pass certain examinations required for the EMT-I certification, is compensable as hours worked because it was neither a part of the approved apprenticeship program nor a legal requirement. While the apprentice standards may have simply required the CRT-I course, it is logical to conclude that the apprentices were expected to successfully complete the course and obtain their CRT license. If an apprentice fails the course and must repeat it in order to satisfy the requirements to obtain the CRT license, it is hard to imagine how this is any different than the initial requirement to attend the course. Moreover, it seems perverse logic to say that the initial training is not compensable, but if an apprentice fails the training, it then becomes compensable. Finally, the Court sees no immediate benefit to the Defendants from Plaintiffs taking remedial courses since it delayed the time that Plaintiffs could conduct ALS duties. Thus, the Court sees no difference in the initial requirement to attend the CRT course and the requirement to take duplicative training when the student fails the required exams.”

Having determined that the training time at issue was not compensable, the Court granted Defendants’ Motion for Summary Judgment.

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