Football Club Legal Refresher: Compensable Time
As we know, jobs in sports is not a 9 to 5 situation. Individuals who work with football clubs certainly work odd hours and are called to work and travel with the team. These people put in long hours, and many of them work beyond 40 hours a week. This blog digs into the issue of what is “compesable time” for the purposes of overtime. In other words, what kind of “time” can be tracked and how should it be tracked?
Let’s start with the basics: Exempt vs. Non-Exempt
(NOTE: This blog only focuses on federal law. Prudent clubs will check with their local state law wage/hour laws to ensure compliance on the state level.) Now, the Federal Law that governs overtime is called the Fair Labor Standards Act (“FLSA”). This law outlines that employees are owed overtime, unless they fit into certain exemptions. The main exemptions are: Administrative, Professional and Executive. Remember, non-exempt employees are owed 1.5 their hourly rate for hours worked over 40 in a week. Prudent clubs will seek counsel to confirm which employees can be classified as exempt.
Employees who do not fit into these exemptions, are owed overtime. Once clubs establish which employees are exempt and which are not, then they must effectively track the non-exempt employees’ time to ensure they are paying overtime. Employers must keep records of all non-exempt employees’ time. (Check out the FLSA Recordkeeping Requirements here.) As discussed here, there is a strong argument that professional footballers are not exempt and owed overtime. Prudent clubs will track the players’ time and pay them overtime.
The Next Question…What is Compensable Time?
It is important for clubs to know that compensable time is time that is “integral and indispensible” part of an employees primary activity. Let’s explore what that means…
TRAVEL.
COMMUTING. The regs are clear that commuting from home to the office is not compensable time. The regular commute to the office does not count. However, travel during the workday, does count. Let’s run through an example:
EXAMPLE - EQUIPMENT MANAGER: An equipment manager reports to the club office to review plans for the week. They spend the day at the office pumping up balls, enuring hydration is ready for training later that day. Then, the same Manager packs up the requipment and heads to the practice pitch. This commuute, from the headquarters to the practice pitch is compensable time. Traveling to the pitch with the equipment is indispensible and integral to the primary duty of the job.
SPECIAL ASSIGNMENT IN ANOTHER CITY. The regulations are clear that longer day trip to different cities are compensable.
EXAMPLE - SOCIAL MEDIA MANAGER: Social media professional for a team based in Washington, D.C., has to travel to Philadelphia to cover their team’s match. The Manager gets an 8:00 am train from D.C. and arrives in Philadelphia to run social for the match. The Scoial Media Manager does not return back to D.C. until 11:00 pm. The time traveled to Philadelphia counts as compensable time, because it is integral to the Manager doing her job. Now, the time spent traveling from the Manager’s home to the train station is not compensable, as that is seen as “commuting” time.
OVERNIGHT TRAVEL. For non-exempt staff that travel with the team to away games, there are some tricky rules. The travel that is compensable is the travel that occurs during the work day.
EXAMPLE - Professional footballers’ flight from Boston to Dallas is scheduled for 10:00 am. That flight is during work hours, and is therefor compensable.
WORK PERFORMED WHILE TRAVELING. Regardless of what time of day the flight or train ride is, should an employee be working during the fight/train ride, then that is compesable time.
EXAMPLE- Social Media professional is revising the instagram post while on a flight to Oklahoma City. This is compensable time that should be tracked for the purposes of overtime.
ENGAGED TO WAIT vs. ON-CALL. Employees who are engaed to wait are considered on-duty and that time is compensable. Please note, that this is different from being “On-Call.”
ON-CALL: When an employee is tasked with being “on-call” it is sometimes considered compesable time.
Compensable On-Call Time: When an employee is forced to stay on the premises and remain on call.
Non-Compensable On-Call Time: When an employee is allowed to leave the premises, but must be on-call for certain tasks/projects. The idea is that the employee still has their own free time while remaining “on-call.”
ENGAGED TO WAIT: Even if the employee can leave the premises, if the individual is waiting for an email or an assisgnment from another, their time essentially “belongs to and is controlled by the employer…”
EXAMPLE: Social Media Manager is waiting for the final photograph from the media team so that he can include it in an instagram story feature. Once the photo is delivered, he has to incorporate it into his draft post, and then send to his Director for approval. It is a time sensitive post about an injury. Once the Director give him the green light, he can then make it live. The Manager is out for dinner and once he gets the notification from the media team, he leaves the table and heads outside of the restaurant to review the photo and incorporate it into the post. Then, he sends it to his Director. The Manager goes back to dinner and orders dessert, only to get pinged by his Director. The Manager steps back outside and receives notice that the post and story is ready to go live. He then posts the story and post. This time is clearly “enaged to wait.” Even though the manager is out for dinner, the time does not belong to him. It is controlled by the club.
CHECKING E-MAIL, VOICEMAIL AND ASSIGNMENTS. While employers have a defense that checking e-mail is “de minimus” prudent clubs will be aware just how much work is being done off hours on e-mail.
BOTTOM LINE
The bottom line is that clubs must ensure that they are tracking the time of the non-exempt professionals and ensure that they are paying the premium rate ( x 1.5) the hourly rate for hours over 40 in a given week. Employer must remember that just because an employee is paid salary, does not mean that they are not owed overtime. Employer simply must calculate an hourly rate based on the salary and then multiply by 1.5.
Clubs must ensure that they are paying employees properly. Claims under the FLSA carry liquidated damages, attorneys’s fees and owed wages, among other things.