The federal Fair Labor Standards Act (FLSA) has a regulation that addresses whether time spent on union matters counts as work time. However, the regulation leaves that determination to “the process of collective bargaining or to the custom and practice under the collective bargaining agreement.”
A class action lawsuit currently pending in federal court in the Eastern District of Missouri alleges that Southwestern Bell violated the FLSA by failing to compensate shop stewards for time spent in union-related meetings or on union business.

Are union-related activities compensable?

In the case Josh Kayser et al. v. Southwestern Bell Telephone Company, the union employees said that the hours they spent in union representational activities, including investigatory, grievance, disciplinary, and other labor management meetings, were unpaid hours worked and thus a violation of the FLSA.

It is generally accepted that employers must pay for the time employees spend performing tasks that benefit the employer.

Southwestern Bell argues that the union-related time was not compensable because it was not contemplated as compensable time in the collective bargaining agreement between the union and the company. As a result, Southwestern Bell has asked the court to dismiss the case or send it to arbitration under the terms of the collective bargaining agreement.

What’s the bottom line?

Class action lawsuits under the FLSA have increased. The theory advanced in this case could affect all employers that have union shop stewards or nonunion employees who serve on committees or attend meetings on behalf of coworkers.

Regardless of how this case is ultimately decided, employers must ensure that they have clearly established and communicated guidelines on how work time is recorded and what time is and is not compensable.
Employers with union employees should make sure that all contractual terms regarding time spent on union activities be clearly established and reach an agreement stating whether union time counts as time worked for purposes of calculating pay and overtime.

Clear contractual language and policies are essential, and consistent and well-documented practices are equally important. Proof that your practice is different from the contract language or policy could create fertile grounds for costly litigation.