Phoenix business law firm Jaburg Wilk Managing Partner Gary Jaburg presents his employment law 'Suffer to Work' presentation.

1. FAIR LABOR STANDARDS
ACT
BY GARY JABURG
Suffer to work and Permit to work

2. (Tennessee Coal, Iron & Railroad Co. v.
Muscoda Local No. 123, 321 U. S. 590 (1944).)
In 1944, Tennessee Coal and Iron & Railroad
Company, who operated 12 mines, did not pay
workers for preparation and travel time. They were
sued by Muscoda Local 123 and the case was
eventually decided by the United States Supreme
court.

3. FACTS OF THE CASE
(Tennessee Coal, Iron & Railroad Co. v.
Muscoda Local No. 123, 321 U. S. 590 (1944).)
The miners spent time at the surface obtaining and/or returning
tools, lamps and carbide as well as checking in and out.
They were required to report at a loading platform and wait for
their turn to ride down the mine shaft on a skip.
The operation of the skips were under the strict control and
supervision of the employer at all times. Regular schedules
were fixed. Loading and unloading of the Skips were
supervised; the speed of the trips was regulated; and the
conduct of the miners during the rides was prescribed.

4. (Tennessee Coal, Iron & Railroad Co. v.
Muscoda Local No. 123, 321 U. S. 590 (1944).)
This case formed the basis for “Suffer to work or
permit to work”. The Supreme Court Stated that
employees subject to FLSA need to be paid for
work which “are performed on the premises of the
employer, in the furtherance of the employer's
business, with no benefits to the employee (except
to aid him in the performance of work for the
employer), under conditions created and controlled
by the employer”.

5. (Tennessee Coal, Iron & Railroad Co. v.
Muscoda Local No. 123, 321 U. S. 590 (1944).)
The employer controlled the work and benefitted from
the employee’s time. The ruling further stated that
employees are to be paid when they “… are required
to report and to remain at a given place awaiting a call
for emergency or other casual service and . . . they are
paid for the hours during which they wait as well as
those in which they actually put forth physical or
mental effort.”

6. (Armour & Co. v. Wantock, 323 U.S. 126 (1944);
Skidmore v. Swift, 323 U.S. 134 (1944)
In a Subsequent 1944 case which involved
firefighters, they were required to be on the
employer’s job site, subject to being on call, but not
engaged in specific work. Generally, they were not at
liberty to leave the premises. While they were paid for
time that they performed actual work, they were not
paid for their on call time. The Supreme Court ruled
that there need be no physical or mental exertion to
qualify as work. In this case, all on-call hours, are
hours worked.

7. (Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680 (1946).)
The work week ordinarily includes “all the time during
which an employee is necessarily required to be on
the employer’s premises, on duty or at a prescribed
work place”.

8. 29 CFR § 785.7. and §785.34.
The Portal to Portal Act did not change the rule,
except to provide an exception and clarification for
certain preliminary and postliminary activities.

9. SO WHAT TECHNOLOGY EXISTED
IN 1940 AND 1950?
29 CFR § 785.7. and §785.34.

10. SUFFER OR PERMIT TO WORK IN
THE DIGITAL AGE
Permit to Work
 Text messaging
 Company e-mail when not in the office
 Snapchat; Instagram; Facebook and other
forms of social media

11. Suffer or permit to work
The FLSA defines the term "employ" to include the
words "suffer or permit to work". Suffer or permit to
work means that if an employer requires or allows
employees to work, the time spent is generally hours
worked. Thus, time spent doing work not requested
by the employer, but still allowed, is generally hours
worked, since the employer knows or has reason to
believe that the employees are continuing to work and
the employer is benefiting from the work being done.
This time is commonly referred to as "working off the
clock."

12. Suffer or permit to work
Place of Work
“Hours worked include all the time during which an
employee is required or allowed to perform work for
an employer, regardless of where the work is done,
whether on the employer’s premises, at a designated
work place, at home or at some other location.."

13. Suffer or permit to work
Place of Work
It is the duty of management to exercise
control and see that work is not performed if
the employer does not want it to be
performed. An employer cannot sit back and
accept the benefits of an employee’s work
without considering the time spent to be hours
worked. Merely making a rule against such
work is not enough.

14. Suffer to Work or Permit to
Work
DOL
audits
are on
the
increase
and
Suffer to
Work or
Permit to
Work are
hot audit
areas!
 Social Media
 A million good reasons to not friend
your boss or your employee
 Company E-mail
 Policy against allowing access
 If allowed for occasionally, ensure
that time is paid for
 Text Messaging
 Educate managers
 Check with non-exempt employees

15. Suffer to Work or Permit to
Work
DOL
audits
are on
the
increase
and
Suffer to
Work or
Permit to
Work are
hot audit
areas!
 Lunch hours
 Take away from assigned work area
 >20 minutes of uninterrupted time. If less
than 20 minutes, they are considered rest
break and are paid time.
 Before scheduled start time
 Just because they arrive at the work place
does not mean that they are working.
However, if they are doing set-up/prep work
it is likely paid time
 After scheduled end time
 Reworking errors
 Emergency project
 Working while they are “waiting” for their
ride.

16. Suffer to Work or Permit to
Work
Important
Facts to
consider
under
FLSA
Suffer to
Work or
Permit to
Work
 Case Law
 Relevant cases are from the 1940s and
1950s, well before the digital age.
 Paid Time
 Does not have to occur on employer
premises
 May include electronic connectivity
 Employer Direct Knowledge
 If manager/supervisor is aware, then
company is liable for wages
 Educate managers
 Written policy against unauthorized
overtime will not protect employer

17. About Gary Jaburg
As the founder and managing partner of Jaburg Wilk, Gary has more than 30 years
invested in building and operating a business. He utilizes this expertise to help his
clients effectively and efficiently resolve both their business and legal issues, Gary’s
particular talent lies in quickly developing a comprehensive understanding of facts,
personalities and legal issues and subsequently devising a realistic, cost effective
strategy for meeting his client’s goals. His direct, businesslike approach coupled with
win-win negotiating style resonates with both clients and opposing counsel. It is a
proven and successful style to resolve business and legal disputes.
Gary is outside general counsel for his entrepreneurial clients not only learning their
business but also winning their trust and confidence. He is the connector in litigation
and transactional matters, frequently being the go-between with litigation or
transactional counsel and clients. By managing these complex relationships, he
develops successful strategies for dispute resolution, deal negotiation or simply
accomplishing the job.
P: 602.248.1000 Web: www.jaburgwilk.com
E: gjj@jaburgwilk.com