FLSA Misconceptions Still Abound!

We sent a twelve-question "quiz" to those who registered to attend AWC’s October workshops on the Fair Labor Standards Act. The intent was to get an idea in advance of the workshops the level of understanding participants had about overtime law.

The results were quite interesting. They clearly showed that some people are unfamiliar with the basic rules – and many more are apparently holding on to some out-dated beliefs, particularly regarding treatment of exempt employees.

Here are a few of the questions in the quiz – test yourself to see if you know as much about overtime law as you think you do.

Q. Police officers work a schedule of three 12-hour days in a row followed by 3 days off. The rotation then repeats. Assuming officers work nothing more than their regular scheduled shifts, are they entitled to overtime?

A. Although 76% answered no, that answer is correct only if the agency has established the 7(k) exception – a partial exemption from overtime pay for police and fire personnel.

The basic rule for overtime under the FLSA is that employees are entitled to overtime after 40 hours worked in a seven-day work week. Unless the 7(k) exception has been established, the schedule outlined above would result in some work weeks of 48 hours and some of 36 hours – entitling the employees to 8 hours of overtime pay in certain weeks.

Section 7(k) of the FLSA allows for alternative work periods for police and fire personnel, ranging from 7 to 28 days, and designates the number of hours that can be worked in a given work period before overtime is due.

In the above example, if the employer had established a 24-day 7(k) work period, employees would not be entitled to overtime. A 24-day cycle allows for a maximum of 147 hours of work before overtime is due, and 12-hour days on a three-on, three-off schedule totals 144 hours in 24 days.

Q. Can a police dispatcher volunteer as a reserve police officer for the same department?

A. Although 52% of the respondents said no, the Department of Labor has ruled that the dispatch function is different enough from that of a reserve officer, making it okay for a paid dispatcher to volunteer time as a reserve police officer. However, if part of the job of a reserve officer is to perform dispatch duties, it would not be appropriate, since employees cannot volunteer to perform the same duties for which they are paid.

Q. A department head who is categorized as overtime exempt received less compensation last year than some of the employees in the department she supervised. Can an agency agree to pay the department head additional compensation when she works more than 40 hours in a workweek?

A. Yes. It is now clear under both the FLSA and state law that additional compensation may be paid to exempt employees for hours worked beyond their standard work week without affecting the "salary basis" test, one of the requirements for exempt status.

Q. If an overtime exempt employee goes home sick in the middle of the day, can a public employer deduct a partial day from the employee’s sick leave balance?

A. Yes. The Abshire decision in 1990 had employers scrambling to change their practices regarding deductions from exempt employees’ leave banks, for fear of invalidating their exempt status. However, subsequent state and federal regulatory changes and court decisions have all clarified that public sector employers in Washington State may safely dock leave balances of exempt employees for absences of less than a full day.

Q. Is an employee who works beyond his or her regular shift entitled to time-and- a-half for hours worked beyond the shift under the FLSA?

A. No. Although the FLSA has never required overtime pay for working beyond the regular shift, 45% of the respondents indicated that overtime at time-and-a-half would be required in this instance.

The FLSA requires that hours worked over forty in a workweek must be compensated at time-and-a-half, but does not mandate overtime after eight hours of work in a day. Of course, your union contracts or personnel policies may obligate you to pay overtime in this circumstance, but the FLSA does not require it. (The overtime thresholds are different for police and fire employees working under the 7(k) exception).

Q. An employee normally works Monday through Friday. During the week of Labor Day, the employee received 8 hours of holiday pay for Labor Day, and then worked a total of 36 hours on Tuesday through Friday. Is the employee entitled to overtime under the FLSA?

A. No. The FLSA requirement to pay premium rates for hours worked over 40 in a work week applies only to the time the employee actually spends working. Time not worked (paid holidays, vacation, sick leave, jury duty, etc.) is not considered hours worked, and is not included when determining whether overtime is due. While the employee in this instance would be compensated for 44 hours (8 hours of holiday pay in addition to the 36 hours worked), no overtime pay would be required. Of course, an employer may agree to pay overtime in situations not required by the FLSA.

So, how well did you do?

If you are questioning whether or not you’ve kept abreast of all of the changes in overtime law over the years, it might be time to get your copy of the Washington State Public Employer Overtime Guide (2005 edition), authored by attorney Bruce Schroeder, the presenter at October’s workshops. This valuable manual outlines the major provisions of the FLSA and provides practical advice to public employers on how to ensure they are complying with state and federal overtime law.

To order, contact Keziah Apuzen at keziaha@awcnet.org or 360-753-4137. The cost is $25 for AWC members and $50 for non-members.

 
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