Library Law: Overtime Pay for Volunteer Work Hours?

By Gerard E. Dempsey and Janet N. Petsche
March 28, 2008

If an employee who is not exempt from the provisions of the Fair Labor Standards Act (the FLSA) violates a library or library system policy prohibiting overtime work without prior approval and voluntarily works in excess of 40 hours in a week, must the library pay overtime wages for the additional hours worked?

The U.S. Court of Appeals for the Second Circuit (whose jurisdiction includes New York , Connecticut and Vermont ) recently ruled[1] that an employer must pay its workers time and one-half for hours worked over 40 in a week, even though the workers failed to follow the employer's policy that required prior approval of all overtime hours worked.

The federal Fair Labor Standards Act requires employers, including public agencies such as library systems, local libraries, and library districts, to pay their employees time and a half for all hours worked over 40 in a given week[2] if the employees in question are not exempt from the overtime provisions of the FLSA.

When Congress amended the FLSA in 1985, it made clear that people are allowed to volunteer their services to public agencies and their community, with one exception -- public sector employers may not allow their employees to volunteer without compensation. Public sector employees may volunteer to do different kinds of work for the public agency by which they are employed, or volunteer to do similar work for a different public agency. For example, police officers can volunteer different work (non-law enforcement related) in city parks and schools, or can volunteer to perform law enforcement for a different jurisdiction than where they are employed.

The United States Department of Labor's regulations[3] define "same type of services" to mean similar or identical services. In general, the DOL would consider the duties and other factors contained in the definitions of occupations in its “Dictionary of Occupational Titles” in determining whether the volunteer activities constitute the "same type of services" as the regular employment activities.

Equally important is whether the volunteer service is closely related to the actual duties performed by or responsibilities assigned to the public agency employee who are "volunteers."

But suppose a library employee works an additional 6 hours in a 35-hour workweek in order to complete a library project, perhaps because there are not enough library staff members to finish all of the necessary tasks. Or, perhaps a 40-hour per week employee is not be able to compete his/her duties within regular hours, or feels that he/she is being "pressured" by a supervisor to work additional hours. Are these employees entitled to overtime wages for hours worked in excess of 40 hours in any workweek?

To avoid the FLSA obligation for overtime wages, some employers adopt a policy designed to restrict unauthorized overtime or, failing that, to protect against claims for time and one-half compensation for unauthorized hours. A typical policy of this kind provides:

“You must notify the EMPLOYER in advance and receive authorization from the EMPLOYER for any work that will bring your total hours to more than 40 hours in any given week. If you fail to do so, you will not be paid overtime rates for those hours.”

In the case referred to above, Gotham Registry, Inc. (Gotham) was a staffing agency that provided nurses to client hospitals. Gotham had a policy against working overtime without permission, and printed that policy on the nurses' timecards. Despite the policy, nurses would often accept additional hours and exceed the 40-hour workweek without prior approval.

The DOL filed a petition in federal court against Gotham, and the Second Circuit ruled that Gotham was required to pay the nurses overtime for their work in excess of 40 hours a week.

The Second Circuit said that Gotham 's written policy prohibiting unauthorized overtime was not enough to prevent unwanted overtime. In reaching its conclusion, the Court cited the FLSA regulation[4] that states in part:

“... it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed ... The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.”

The Court did not believe that Gotham had made every effort to ensure that the nurses did not work unauthorized overtime. It noted that Gotham did not explain why it could not keep a daily, unverified tally of its nurses' hours and reassign shifts later in the week that would result in overtime. Gotham also could have refused to assign any shifts to nurses who habitually disregarded its overtime rule. The Court said that if Gotham were serious about preventing unauthorized overtime, it could have disciplined nurses who violated the rule. Gotham could also have entirely disavowed overtime hours, announcing a policy that it would not, under any circumstances, employ a nurse for more than 40 hours in a week.

The lesson to be learned from this case is that even unauthorized overtime must be paid for if the library has actual or imputed knowledge that an employee is working overtime, unless the library fulfills its duty to see that overtime work is not performed. Mere instructions by the library, periodic warnings forbidding overtime work, and even a contract clause forbidding overtime work, are insufficient to avoid responsibility for overtime compensation. This duty arises under the FLSA even if the library has not requested the overtime work to be performed, or does not desire the employee to work, or if the employee fails to report his overtime hours to the library.

Why the employee continues to work beyond his or her shift is immaterial; if the library knows or has reason to believe that the employee continues to work, the additional hours must be counted and the overtime compensation must be paid for work in excess of 40 hours in a workweek.

About the Authors

Gerard Dempsey and Janet Petsche are partners with the law firm of Klein, Thorpe & Jenkins, Ltd. which is an Illinois law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia, Orland Park. The firm concentrates in the representation of local libraries, Library districts and Library systems, as well as other local governmental units.

Footnotes

[1] Chao v. Gotham Registry, Inc. 514 F.3d 280 (2nd Cir. 2008).

[2] 29 USCS 207(a)(1).

[3] 29 CFR 553.103.

[4] 29 CFR 785.13.

This article first appeared in the NSLS Newsletter, March 28, 2008