An overview of wage and hour compliance
By Brandy McAllister, RMF Legal Counsel
One of the most common questions I receive from county officials across the state is whether they are handling their comp time/overtime correctly. This article is by no means all encompassing, but instead will give some of the main points to remember when trying to determine if you are compliant with the Fair Labor Standards Act (FLSA). The FLSA is the federal law that governs minimum wage and overtime requirements for employees. The FLSA is administered and enforced by the United States Department of Labor (DOL). There are two distinct times when the federal DOL has jurisdiction under the FLSA: 1) when a non-exempt (hourly) employee does not receive minimum wage for all of their hours worked, and 2) when a non-exempt employee does not receive time and a half (overtime or compensatory time) for any overtime hours worked in a period.
These provisions only apply to non-exempt employees as defined by the Act. In contrast, exempt employees are exempt from the requirements of the FLSA. An exempt employee must be one who makes at least $455/week and who meets one of the duties tests laid out by the law. If you have a qualifying employee (based on wage and duties) then they may be classified as exempt and paid on a salary basis. However, keep in mind there is no requirement that you classify qualifying employees as exempt. You may continue to treat all employees as non-exempt at your discretion. The two most important points to remember regarding exempt employees who meet the duties and wage tests are: 1) you must have an accurate job description on file demonstrating the nature of their duties; and, 2) they must make the same amount of money each pay period regardless of the hours worked, or the quality of the work performed.
Alternatively, if an employee is non-exempt, they are considered an hourly employee, and you must be sure to comply with the FLSA regarding their hours worked and their overtime calculation. Another common question I get is whether a non-exempt employee is salaried or hourly. Many counties have non-exempt employees they pay on a salary basis based on the quorum court appropriation. Other counties classify their non-exempt employees as hourly.
Please keep in mind that just because you hire and pay an employee on a salary basis, does not make them exempt from the provisions of the FLSA. Salaried employees that do not meet the wage and duties tests under the law still must be paid minimum wage and still must be paid overtime at a rate of one and half times their regular wage. The law says the salary may be paid to cover a set number of hours (regularly scheduled hours). If their hours exceed 40 in a workweek, you must calculate their hourly rate and pay overtime, or compensatory time, for all hours over 40.
Another significant, and often overlooked, point under the FLSA is the employer’s requirement to keep accurate time records. What this means is that your time sheets should accurately reflect the time of day each employee arrives, the time of day they take any unpaid breaks, and the time of day they leave. This can be done on handwritten time sheets or through a time clock or other electronic system. As long as the time sheets are accurate, it doesn’t matter what form they take.
Time sheets that simply put down 8 for hours worked for the day, or time sheets that show an employee arrives every day at 8 a.m. and leaves every day at 4 p.m. with a 60-minute lunch in the middle, are likely not going to be considered accurate under the FLSA. Also, when calculating hours, it must include all hours worked, not just scheduled hours. If you have employees coming in early or leaving late that must be reflected on the time sheets as well. You can set policy prohibiting employees from working outside of regularly scheduled hours, you can discipline employees for violating your policy, but you must pay employees for the time regardless.
Employees who work more than 40 hours in a single work week (seven-day period) must be paid time and a half or receive compensatory time at the rate of time and a half for any time worked over 40 hours. If your county has adopted the 207(k) exemption for law enforcement (jailers and deputies only), then overtime is not required until after the law enforcement employee exceeds the designated number of hours. Under 207(k), an employer may select any work period between seven and 28 days, and then the law designates at what point overtime begins. Examples of this would be a 28-day work period and 171 hours worked, or a 14-day work period and 86 hours worked. The work period should be laid out in the county personnel policy or in the sheriff’s department policy.
This article is only intended to touch on some of the most basic requirement under the wage and hour laws and is not intended to be legal advice. If you have questions or concerns about whether your office or county is compliant with wage and hour requirements please contact your appropriate legal counsel for further evaluation.