But They Said Their Payroll Program Complied With the FLSA...?
This article examines FLSA compliance problems faced by public employers in selecting a computer payroll system and provides an overview of the FLSA and how it has come to be applied to the public sector. Common FLSA deficiencies of payroll programs for public sector employers are discussed with an explanation of the law. The article offers guidance to public employers on steps to ensure that their payroll system is designed and implemented in compliance with the FLSA.
Public employers who select or upgrade a payroll system often overlook the critical element of Fair Labor Standards Act ("FLSA") compliance, resulting in either costly change orders or, even worse, an FLSA lawsuit. Software companies claim that their payroll software is fully FLSA compliant. However, upon closer inspection, their definition of compliance is usually based upon the traditional private sector requirements. Unfortunately, total FLSA compliance is far more complicated in the public sector and, even in the private sector, often requires a degree of flexibility that is not present in commercial off-the-shelf programs. Thus, public employers must be particularly cognizant of their unique FLSA issues when selecting and implementing a payroll system. A failure to recognize issues unique to the public sector can lead to a payroll system that ensures the agency cannot fully comply with the FLSA.
This article is divided into three parts. The first section will provide an overview of the FLSA and how it has come to be applied to the public sector. The second section will discuss common limitations of computer payroll systems that affect an agency's ability to comply with the FLSA. The third section will offer guidance to public employers to ensure that their payroll system is FLSA-compliant.
A. Brief History of the FLSA
The FLSA was enacted by Congress in 1938 in the midst of the Great Depression. The purpose of the FLSA was to protect workers from substandard wages and oppressive working hours and conditions that were detrimental to the "health, efficiency, and general well being of workers." The FLSA was "designed to give specific minimum protection to individual workers and to ensure that each employee covered by the Act would receive [a] fair day's pay for a fair day's work and would be protected from the evil of 'overwork' as well as 'underpay.'" The Act was primarily aimed at protecting vulnerable workers - children and low paid sweatshop employees. The Act did not apply to public agencies and the FLSA regulations initially issued by the United States Department of Labor ("DOL") did not contemplate the Act being applied to public agencies.
1. The Unholy Marriage of the FLSA to the Public Sector
In 1966, the first in a series of amendments to the FLSA was enacted in an attempt to apply the FLSA to public employers. However, the FLSA did not become fully applicable to public agencies until 1985. When the Supreme Court held that the FLSA applies to public agencies in March of that year, many public agencies were ill-prepared for the transition to an FLSA environment that was suddenly thrust upon them. Employees, however, were prepared to sue their employers for violating the FLSA. The Garcia decision triggered a flood of FLSA litigation against public agencies.
FLSA litigation has again increased in the last few years, as employees and their attorneys become captivated by the promise of multi-million dollar verdicts and settlements. A court recently found Farmers Insurance Exchange liable for misclassifying insurance adjusters as exempt under state wage law, resulting in a 90 million dollar verdict. News of this verdict was predicted to trigger another flood of overtime lawsuits in California. Thus, the risk to public employers of an overtime lawsuit has never been greater.
The DOL has issued hundreds of regulations, interpretative bulletins and opinion letters that specify how employers should comply with the FLSA. Most of the DOL regulations were adopted prior to 1985 when the FLSA did not apply to the public sector. The application of private sector wage and hour principles to the public sector is often awkward and difficult. Provisions that seem so simple and straightforward for factory workers become hopelessly complicated and illogical when applied to police officers. The many different types of unique services provided by public agencies are not adequately, if at all, addressed by the DOL.
2. Why Plaintiffs' Attorneys Love the FLSA
The recent increase in FLSA litigation can be traced in part to increased awareness by plaintiffs' attorneys of the lucrative nature of FLSA lawsuits. Attorneys have recently awakened to the FLSA for two reasons -- multi-million dollar verdicts and attorney's fees. Multi-million dollar verdicts are common in FLSA cases because an FLSA violation generally applies to large segments of employees in an agency. Attorney's fees are mandatory if an FLSA violation is proved. While an attorney would not normally prosecute an overtime lawsuit for one employee where only five thousand dollars in damages is available, the attorney would bring the same lawsuit on behalf of 200 employees, where the potential exists for one million dollars in damages and hundreds of thousands of dollars in attorney's fees.
As previously noted, it is more difficult for public sector employers to comply with the panoply of regulations that do not apply neatly to public agencies. Thus, the chances for a successful verdict or settlement are greater, creating even further incentive for attorneys and employees to sue public agencies.
B. The Advent of Computer Payroll Systems
Many public employers initially implemented computer payroll systems prior to 1985, when the FLSA did not apply to public agencies. These systems were typically cumbersome mainframe computer systems that lacked flexibility. Once the FLSA became applicable to public agencies in 1985, the existing computer payroll systems were unable to handle issues such as tracking overtime for safety personnel whose overtime is calculated based upon 27 or 28 day work periods instead of 7 day workweeks.
In the past few years, many agencies have upgraded or replaced their payroll systems to address Y2K concerns or to integrate human resources systems with payroll systems. The trend to integrate human resources and payroll data into one linked computer system has added an element of complexity to payroll systems that further affects an agency's ability to comply with the FLSA. Since the systems are rarely being upgraded for the purpose of improving FLSA compliance, agencies may overlook or underestimate the necessary requirement of FLSA compliance for a payroll system.
C. The Integration of the FLSA into Computer Payroll Systems
A number of computer software companies, such as PeopleSoft, have created off-the-shelf computer payroll systems that promise to be FLSA compliant. Most of these software packages were initially designed for private sector companies. Private sector companies almost exclusively have standard seven day workweeks for non-exempt employees. They also tend to have fewer bonuses, shift differentials, standby pay, and other types of special pays that predominate in the public sector. Aside from large corporations, they also tend to have fewer bargaining units and collective bargaining agreements than public agencies.
Public agencies provide a wide and diverse range of services to the public, such as safety, utilities, and social services. Whereas a private corporation may primarily make one type of product, such as computer software, most public agencies provide many different types of services to the public with drastically different job classifications, work environments, work hours, and compensation. All of these factors result in a higher level of complexity for public sector payroll that makes FLSA compliance more difficult.
1. Why Payroll Software Companies Claim That Their Software is FLSA Compliant
Major payroll software manufacturers often advertise their systems as FLSA compliant. However, their definition of FLSA compliance is typically based upon private sector FLSA compliance, even for those software manufacturers who offer public sector payroll programs. Their definition is also often based on meeting the bare minimum requirements of the FLSA, without regard to various options that might be attractive or even necessary for public employers. For example, a vendor could claim that a system that pays overtime based upon a seven day workweek is FLSA compliant, although that system cannot accurately process overtime for employees on alternative workweek schedules. Thus, when public agencies are evaluating proposals for payroll systems, they are informed that the off-the-shelf software programs are FLSA compliant, when they really are not fully compliant for public sector purposes.
Liability for FLSA violations has been imposed on public agencies by courts that rejected an employer's argument that its payroll system could not perform the tasks required under the FLSA. Public agencies that do not independently investigate and ensure the FLSA compliance of their payroll system put their agency at risk of liability if their agency is one of the many targeted by employees for overtime lawsuits.
Common FLSA Concerns With Payroll Software Programs
The issues identified in this section are common limitations inherent in standard computer payroll systems. Since there are so many versions and releases of various payroll programs, this section identifies the common limitations rather than specific issues with specific programs. As will be discussed further in the next section, these are issues that employers should consider when designing and purchasing payroll systems.
A. 9/80 Work Schedules
1. Employers Must Designate FLSA Workweeks For All Employees
The 9/80 alternative workweek schedule has become popular with public employees. Employees on a 9/80 work nine days instead of ten in a two week period, with eight nine hour days and one eight hour day. Employers must designate a 7 day, 168 consecutive hour FLSA workweek for all employees. The FLSA workweek, not the calendar week or the pay period, is the sole standard by which FLSA overtime is measured for non-exempt employees. Proper payment of FLSA overtime to employees who work a 9/80 schedule depends upon a careful designation of their FLSA workweek. If the workweek is not precisely designated for employees on a 9/80 work schedule, the employer will incur automatic FLSA overtime every other week, usually in the amount of 4 hours per week.
Some employers mistakenly believe that because they pay employees for only 36 hours in one workweek, they can pay employees for 44 hours in the other workweek without any FLSA overtime liability. However, the Department of Labor specifies that each workweek stands alone, independent of all other workweeks for FLSA overtime purposes. Thus, an underpayment of 4 hours in one workweek does not offset an overpayment of 4 hours in a subsequent workweek.
The designated workweek for a 9/80 employee will not correspond to a calendar week. If the employee typically has every other Friday off, the work week must be designated to start and stop four hours into the employee's Friday work shift. This means that if the employee's work shift normally starts at 8 a.m., overtime is calculated from noon on Friday until noon on the following Friday for FLSA purposes.
2. The Payroll System Must Be Able to Split Hours Worked in a Day Into Two Separate Workweeks
Since the FLSA designated workweek for an employee on a 9/80 schedule will stop and start in the middle of a workday, the employee will work hours in two different FLSA workweeks on the same day. Therefore, the payroll system will need to be able to split the hours worked on that day into two different FLSA workweeks and calculate overtime based on those FLSA workweeks. For example, if an employee on a 9/80 normally starts her shift on the split day at 8 a.m., but comes in one hour early, she will incur 1 hour of FLSA overtime in that FLSA workweek unless she takes one hour off before noon on that day. Similarly, if she comes in one hour later than normal on her split day, she will incur one hour of overtime in the FLSA workweek that starts at noon. If the payroll system cannot account for hours on the same day in different workweeks, the employer will have great difficulty paying the employee correctly under the FLSA.
Many payroll software programs cannot accommodate this splitting of the work day to track four of the hours in one FLSA work week and four (or five) of the hours in another FLSA workweek. Additionally, the payroll system will probably need to be able to track FLSA workweeks over multiple pay periods, as pay periods typically do not stop and start in the middle of a workday. An exception-based payroll system is especially problematic as it does not account for changes in the start or stop times of the workday or changes in the employee's day off, all of which could lead to increased FLSA overtime liability. Finally, public employees may be paid daily or weekly overtime under a collective bargaining agreement. In those situations, the payroll system will need to be able to calculate overtime based on the requirements of the collective bargaining agreement and on the separate FLSA requirements.
B. The Regular Rate of Pay
The FLSA requires that overtime compensation be paid at one and one-half times the employee's regular rate of pay. Although the term "regular rate" is often associated with an employee's base salary or pay, the FLSA has its own definition of the term. The FLSA requires that the regular rate of pay include "all remuneration for employment paid to, or on behalf of, the employee," except those payments that are specifically excluded. The regular rate is generally calculated by dividing the compensation that goes into the regular rate in the work period by the hours worked in the work period that the compensation was intended to compensate.
Special pay provided to the employee, such as a shift differential or bilingual pay, will result in an FLSA regular rate of pay that is higher than the employee's base hourly rate.
Calculation of the regular rate of pay under the FLSA is probably the most complicated FLSA topic for public employers for two reasons. First, public sector employees typically have specialty pay and on-call pay that must be included in the regular rate of pay. Second, safety employees have a different method of calculating overtime. Both of these factors require additional flexibility in software payroll systems.
1. Bonuses and Special Pays
Payments for shift differentials, hazardous duty pay, bilingual pay, special assignment pay, and educational incentive pay are examples of specialty pay types that must be included in the regular rate of pay. Standby or on-call pay is common in public agencies, particularly among police officers who get called to testify in court and public works employees who need to be available for repairs at any hour of the day. Payments made to employees for being on unrestricted standby or on call time must be included in the employees' regular rate of pay. Correct computation of the regular rate of pay requires that the on-call amount be included with the compensation for normally scheduled hours for that workweek to determine the regular rate of pay.
Standby pay is often paid as a flat daily or weekly amount of pay, or as an hourly rate that is much lower than the employee's normal hourly rate. Some payroll systems cannot include flat amounts for on-call or standby pay in their calculation of the regular rate of pay. Payroll programs may also not be able to process standby amounts paid on an hourly basis, where the employee is not actually working for FLSA purposes during those hours. Additionally, special pay may be paid on a bi-weekly or monthly basis that does not correspond to the employee's FLSA workweek. In those cases, the payroll program must convert the amount into a weekly amount for the workweeks that the special pay is intended to cover. If an employee receives an annual bonus, the payroll system will need to be able to recalculate the employee's regular rate of pay for each workweek in the preceding year to account for the bonus amount, and pay any extra FLSA overtime amounts owed as a result.
2. Blended Rate for Multiple Positions
The FLSA provides that employees who work at two or more rates of pay can only be paid in one of two ways. The first method is through a blended rate, in which the hours worked at each of the rates are combined to determine a weighted average rate of pay. The employee is then paid overtime at time and one half that weighted average for all overtime hours worked. The second method of paying overtime under the FLSA is to pay the employee time and one half of the applicable rate for each hour worked over 40. This method requires a chronological analysis of the hours worked. On each hour worked chronologically in a work week, overtime must be paid at whatever rate is applicable to that hour.
The payroll system should ideally be able to calculate FLSA overtime based on both of these methods, but must be able to at least perform a blended rate calculation. Some payroll systems do not allow an employer to assign a different hourly rate to different hours in the same workday or same workweek. Some payroll systems also do not compensate the employee at a blended rate once the employee has exceeded 40 hours worked. Finally, an employer who does not want to use a blended rate for overtime worked in two different positions must have a payroll system that can identify chronologically when the employee has worked over 40 hours in the workweek and pay FLSA overtime for each hour worked thereafter at the appropriate overtime rate for that position.
C. The Complexity of Overtime Payment For Safety Employees
1. Overtime Based On A Work Period Up To 28 Days
One of the only adjustments made to the FLSA specifically for public employers permits sworn firefighters and law enforcement employees to have a work period for overtime purposes of up to 28 days. Overtime is paid based upon a ratio according to the length of the work period - 7.57 hours per day for firefighters and 6.11 hours per day for law enforcement. Typically agencies adopt a 28 day work period for law enforcement and a 24 or 27 day work period for fire fighters, although any length of work period between 7 and 28 days is permitted.
Most public agencies have bi-weekly or 14 day pay periods. Often the work period for safety employees will be longer than 14 days. Computation of FLSA overtime for those safety employees requires that the payroll system calculate the hours worked over multiple pay periods to determine whether any FLSA overtime is owed. Payment becomes more complex when the work period does not neatly overlap with the pay period, such as for a 27 day work period that will always seem to end at a different time in the pay period.
Level Pay Plans For Firefighters
Some payroll software programs will pay firefighters based upon the assumption that they work an average of 56 hours per work week that includes 3 hours of FLSA overtime. Firefighters often negotiate level pay plans with their department, so they are paid as if they worked the same number of hours each pay period. However, firefighters do not always work 56 hours per week. In fact, firefighters who work 24 hour shifts will normally not work exactly 56 hours in a week. The assumption that a firefighter works an average of 56 hours per week will result in underpayment of FLSA overtime for some pay periods and overpayment for other periods. The FLSA strictly prohibits the averaging of FLSA overtime over work periods, and the DOL has specifically prohibited this practice regarding firefighters. Therefore, the payroll system must pay firefighters based upon the actual hours worked in the FLSA work period, not an average of the hours worked.
The Regular Rate For Safety Employees
The calculation of the regular rate of pay for law enforcement and fire personnel is equally complicated. The regular rate of pay for safety employees is calculated based upon the compensation for the work period, not the workweek. If the employee is paid a weekly or monthly special pay that goes into the regular rate of pay, that payment must be converted into an amount for the length of the work period, such as 27 or 28 days. This process will again potentially require the payroll system to allocate the bonus over multiple pay periods and multiple work periods.
Another difficulty for payroll systems is that firefighters generally have regularly scheduled FLSA overtime. For regular rate calculations, the regularly scheduled hours are included in the regular rate but any premium overtime pay is excluded. Therefore, for safety employees the payroll system must be able to calculate the regular rate based upon an irregular work period and based upon regularly scheduled overtime hours. Finally, the payroll system must actually calculate the regular rate for each FLSA work period.
2. Timely Payment of Overtime
Police departments often have multiple work sites - large agencies can have dozens of stations. This creates logistical difficulties with tracking overtime from multiple work sites. The FLSA requires that overtime be paid on the same payday as regular wages unless the correct amount of overtime compensation cannot be determined. Courts have interpreted an employer's ability to determine overtime compensation very narrowly and rejected most attempts by employers to pay overtime later than the regular payday. The payroll system must be designed in a manner that permits quick automated computation of overtime due to safety employees after the end of a work period. The inability of payroll programs to accurately calculate overtime for safety employees has forced some employers to perform manual FLSA overtime calculations. Aside from the additional cost and inefficiency of manual overtime calculations, those employers also may be at risk of a lawsuit for violation of the FLSA's timely payment provisions.
D. Multiple Bargaining Units
Many public agencies have several bargaining units - fire, police, general/civilian employees, and management. Larger agencies can have dozens of bargaining units. Employees in each of the bargaining units may be paid based on a totally different method, including different work periods for safety employees or hospital employees. For example, some bargaining units may receive merit-based pay, others may be paid based on a pay for performance matrix. Some of the computer payroll systems cannot accommodate such a variety of bargaining units and a variety of bonuses or pay rates associated with each of the different bargaining units.
E. Compensatory Time Off - The Ability to Distinguish Between FLSA and Non-FLSA CTO
The FLSA allows a public employer to provide its employees with compensatory time off ("CTO") in lieu of paying cash for FLSA overtime hours worked. Since many public agencies pay overtime far more generously than required by the FLSA, they create a class of overtime known as non-FLSA (or MOU) overtime. This overtime is not required by the FLSA but is nevertheless paid by the public agency pursuant to a collective bargaining agreement or salary resolution. Non-FLSA overtime may also be compensated with non-FLSA CTO that is not subject to any of the FLSA's requirements regarding accrual, usage and payout of CTO.
1. The Effect of CTO Usage on Employers
The ability to distinguish FLSA from non-FLSA CTO is particularly important for public employers who have staffing shortages. The FLSA requires that an employee be allowed to use his CTO within a reasonable time period unless the use of the CTO by the employee would unduly disrupt the operations of the agency. The "unduly disruptive" standard does not apply to non-FLSA CTO, permitting an employer far greater flexibility in denying the request to use CTO. Since there are far fewer restrictions on non-FLSA CTO, particularly when an employer must permit an employee to use the CTO, employers often have a significant interest in distinguishing non-FLSA CTO hours from FLSA CTO.
Most off-the-shelf computer payroll systems are not capable of distinguishing between FLSA and non-FLSA compensatory time off. Since the FLSA standards regarding compensatory time off ("CTO") do not apply to non-FLSA CTO, an agency that is unable to distinguish between FLSA CTO and non-FLSA CTO may end up having to treat all CTO as FLSA CTO. This imposes unnecessary restrictions upon the agency. Since a significant portion of public agency CTO is non-FLSA CTO, an inability to distinguish non-FLSA CTO from FLSA CTO hampers the ability of the agency to effectively operate, as more employees will be taking time off on a more frequent basis. It also creates additional overtime liabilities for the agency, as the DOL does not permit an agency to deny a request to use compensatory time off simply because it would have to back fill the position on an overtime basis.
2. Payment of Accrued CTO
The FLSA permits a public employer to cash out an employee's CTO bank at any time. Accrued CTO must be paid at the employee's regular rate of pay. The employer is obligated to cash out CTO upon termination of employment at the higher of:
A payroll program must be able to pay off the accrued CTO at the appropriate regular rate of pay.
Although a payroll software program that does not distinguish between FLSA and non-FLSA CTO may be technically compliant with the FLSA, it will impose significant limitations upon an employer if it cannot distinguish between the two types of CTO.
F. Overtime Exempt Employees
Many of the multi-million dollar FLSA cases involve employees misclassified as exempt from overtime, either because they do not perform exempt duties or because they are not paid on a salary basis. The salary basis test can be easily violated by improperly disciplining an exempt employee. The FLSA only permits an employer to suspend an employee for one or more full FLSA workweeks, except for violations of major safety rules. Employers cannot reduce the pay or impose other types of suspensions on exempt employees. Often in large agencies such discipline can be imposed on lower level exempt employees without the knowledge of upper management. A mechanism in the payroll system that prohibits suspensions of exempt employees other than on a weekly basis will prevent a finding that its exempt employees are really non-exempt.
Frequently in the public sector exempt employees will earn overtime for certain activities even though they are exempt from FLSA overtime requirements. Although the FLSA permits such overtime payments to exempt employees, some payroll systems will not allow an employer to pay overtime to its exempt employees.
G. Partial Exemptions For Unionized and Hospital Employees
Employers are generally not required to pay daily overtime to employees under the FLSA. However, sections 7(b) and 7(j) of the FLSA provide partial exemptions for certain unionized workers and for hospital employees that permit work periods longer than a workweek, but also require daily overtime. The 7(b) exemption requires overtime for working more than 12 hours in a workday and 56 hours in a workweek. The workweek for employees subject to a section 7(b) partial exemption is either 26 or 52 weeks, while the workweek for hospital employees is 14 days. Under section 7(b) there is an absolute cap of either 1040 or 2240 hours worked in a six month or one year period. The payroll system must be able to recognize if an employee has exceeded that cap, and if so, to recalculate weekly overtime backwards over the entire six month or one year work period.
The 7(j) exemption requires overtime for working more than 8 hours in a workday or 80 hours in a 14 day period. This partial exemption is specific to the work location - i.e., the hospital. Thus, some employees in a bargaining unit or department would be subject to the 7(j) exemption while they work at a hospital, and not when they work elsewhere. A payroll system needs to be able to allow the employer to alter overtime payment schemes based upon work assignment for an employer to successfully utilize a 7(j) work period. Payroll software for employers utilizing a 7(b) or 7(j) partial exemption must also be able to pay daily overtime and to pay overtime based upon work periods of more than a workweek.
Suggested Solutions For Employers
1. Specify Unique FLSA Requirements in the RFP
Most employers make FLSA compliance a requirement in the proposal stage of a payroll system development. Many employers have discovered while testing a system that was advertised to be FLSA-compliant that it cannot perform critical tasks, such as computation of FLSA overtime for firefighters. Employers should not rely on vague assurances of FLSA compliance from payroll software companies in the proposal stage that may only refer to private sector employment. Public employers should specify the unique requirements for public employers that must be part of any new payroll system. For safety employees, the specifications should include a detailed description of how the fire and police overtime will be calculated based upon the agency's FLSA work periods for fire and police personnel.
2. Assess FLSA Needs and Compliance During the Design Phase
As a practical matter, many of the details necessary for FLSA compliance are not fully addressed until the design phase of the payroll system. Once a vendor has been selected, the employer should consult with an expert in the FLSA during the design phase to ensure that the system is FLSA-compliant. The design phase is a critical step in an agency's FLSA compliance program, as courts have held that an employer cannot set up an inefficient payroll system and then argue that their payroll system cannot perform certain tasks as a defense to an FLSA lawsuit. The design phase should include a careful description and analysis of the methods used to calculate the regular rate of pay and FLSA overtime for all non-exempt employees.
Even if an employer is later found to have violated the FLSA, consultation with an expert in the FLSA may enable the employer to avoid double damages. In an FLSA lawsuit, double damages ("liquidated damages") are mandatory unless an employer can prove that its actions were based upon a reasonable good faith belief that it was in compliance. Consultation with legal counsel has been identified by courts as proof that the employer acted in good faith. Thus, consultation with legal counsel will not only ensure that the system actually complies with the FLSA, but also that the employer can potentially avoid double damages if it is later found to be in violation of the FLSA.
3. Verify and Audit the Compliance of the Installed Payroll System
The methods for calculating the regular rate of pay and FLSA overtime should theoretically be perfected in the design phase of the payroll program implementation. However, employers should periodically test whether their payroll system is accurately paying FLSA overtime by manually calculating FLSA overtime for various work periods, particularly for fire and law enforcement employees. Employers should also periodically ensure that the payroll system is paying overtime in a timely manner - i.e., at the same time as regular wages for that work period. Finally, employers should assign one or more employees to track changes in the law that might affect the agency's FLSA compliance.
Payroll software, like the FLSA, was not specifically designed for public employers. Regardless of the claims of payroll software companies, the unique requirements of public sector employment demand that employers independently verify that their payroll software complies with FLSA requirements. While this process may be time consuming and costly, an employer can avoid significant liability for FLSA lawsuits by insuring the FLSA compliance of its payroll system. Compliance is achieved through the design of and ongoing audits of the payroll system. Attention to FLSA details through those methods will lead to a payroll system that is FLSA-compliant.
Brian Walter is an attorney with Liebert Cassidy Whitmore, which represents public employers on labor and employment matters. Mr. Walter has handled several multi-million dollar FLSA lawsuits, conducted FLSA training sessions, performed FLSA compliance audits for numerous public employers and authored publications on the FLSA.NOTES
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