Supervisors with training responsibilities need to be careful about requiring workers to do preparatory work or other training-related activities on their own time--unless they are authorized to approve overtime for the tasks. That's because nonexempt workers who perform such activities may qualify for overtime pay.

What Happened

Canine enforcement officers for the Customs and Border Protection Service (Customs) of the U.S. Department of Homeland Security train "detector dogs" to find illegal drugs hidden in containers that flow into U.S. ports. The canine officers are responsible for training these dogs on an ongoing basis.

One of the training exercises regularly repeated is having the dogs track down tightly rolled towels that are scented with narcotics and placed in training-aid containers. The dogs are then allowed to play with the towel or a similar, unscented towel as a reward.

In the past, canine officers had to construct and maintain the containers and clean the towels on their own time without compensation.

Customs requires that the canine officers follow detailed laundering instructions to ensure that the towels are free of scents from detergents or other odors. Failure to follow the instructions could result in a charge of neglect of duty.

About 60 canine officers filed suit in federal district court claiming that the government owed them overtime pay for this work.

More than 3 years after the case was transferred to the Court of Federal Claims, a Customs executive issued a memorandum stipulating, among other things, that canine officers must clean the towels and prepare the containers during normal duty shifts, and that directors at each port must remind them of that, as well as the need to obtain advance supervisory approval for any overtime work.

"Supervisors will also advise ... canine officers who construct training aids outside their normal duty hours that they will not be compensated for the time spent performing such tasks," the memo stated.

The government contended that the canine officers in this case were not eligible for overtime pay under the Fair Labor Standards Act (FLSA), because their compensation was covered exclusively by the Customs Officer Pay Reform Act (COPRA).

The Court of Federal Claims, however, ruled that COPRA only covers overtime compensation for overtime work that is "officially assigned," and that other overtime work is covered by the FLSA. It said that the canine officers were entitled to 3.5 hours of compensation per week for "laundering and processing training towels" (2 hours) and "[c]onstructing training aids" (1.5 hours)--for the time period before the memo was issued.

In preparation for a bench trial, the number of canine officers involved in the case was reduced to six. The court awarded $287,489.94 in overtime compensation, liquidated damages, and attorneys' fees and costs. The government appealed the decision to the U.S. Court of Appeals for the Federal Circuit.

What the Court Said

The appeals court affirmed the decision, saying COPRA covers overtime pay for "officially assigned" overtime, and that the canine officers were entitled to overtime compensation under the FLSA for the time they spent cleaning the towels and preparing the training aids because that work was not "officially assigned."

According to the appeals court, there was sufficient evidence to show that Customs had willfully violated FLSA's overtime provisions. Extensive testimony, the executive's memo, and an internal memo demonstrated that Customs knew the canine officers had been working off-duty without pay.

The government argued that the canine officers should be compensated for only up to 15 minutes of pay per week, instead of the specified 2 hours for cleaning towels. However, the appeals court said they were entitled to 2 hours of pay "because their activities during the downtime were significantly limited by their need to monitor their running washers-- [appliances] capable of overflowing, and running dryers--appliances capable of causing fires."

The appeals court upheld the award of 1.5 hours of pay per week for constructing the training aids to all six canine officers, even though three acknowledged that it took less time. The government did not cite any authority stating that damage awards could not be greater than the amount requested by the canine officers, the court said ( Bull, et al. v. United States (No. 2006-5038) ( U.S. Court of Appeals, Fed. Cir., 3/15/07).

What You Can Do

Make sure supervisors understand when workers must be paid for training. Although this case involved federal employees, it has important implications for nongovernment employers covered by the FLSA. Supervisors need to know that training programs conducted during regular working hours constitute work time and must be compensated as such. Workers don't have to be paid for after-hours training when: attendance is entirely outside normal working hours and is voluntary; the training is not directly related to the employee's present job; and/or the employee does not do any productive work during the program.

Encourage supervisors to consult with HR. If supervisors are unsure about whether workers needs to be compensated for the time they spend in training, or for performing related work outside working hours, advise them to check with HR.

Review the company's overtime policy. If a company requires advance supervisor approval for any overtime worked, supervisors must be sure that workers are aware of that policy.