This page provides a general overview on the requirements of the Fair Labor Standards Act for Washington local governments, including links to reference guides, statutes, and court decisions.
The Fair Labor Standards Act (FLSA) is the federal law which sets minimum wage, overtime pay, equal pay, record keeping and child labor standards for employers who are covered by the Act. The federal statutes are codified in 29 U.S.C. Ch. 8 and the administrative regulations are set in Title 29 C.F.R..
It applies to full-time and part-time private and public sector employees, although some specific employees of cities and towns still may be exempt from some of the provisions of the Act.
New FLSA final overtime rules were scheduled to go into effect December 1, 2016. However, a federal district court has issued a nationwide preliminary injunction against implementation of the rules. Implementation, if it happens at all, must await further hearings and action by the court.
Both federal and state law, the Fair Labor Standards Act (FLSA) and the Washington State Minimum Wage Act, require payment of overtime to nonexempt employees for the time they work over 40 hours during a work week. (When the two laws differ, the employer must comply with the law that is more generous to employees.)
Overtime pay is at the rate of not less than one and one-half times the employee's regular pay rate. That's the general rule, but there are some situations that might require a different result, as I discuss below.
Who Is Eligible for Overtime Pay?
Overtime pay is only available to "nonexempt" employees - employees who are not exempt from the overtime requirements of federal and state law - and most employees are nonexempt.
Who Is Exempt?
For local governments, employees may be exempt if they work in executive, administrative, professional, or computer-related occupations. Exemption is not automatic, however; to qualify as exempt, the position must satisfy both a salary basis and a duties basis test. Just being classified and paid as a "salaried" employee is not enough for an employee to be exempt.
It is very important to properly classify employees as either exempt or nonexempt, though it is better to err, if at all, in favor of classifying employees as being nonexempt. If a nonexempt employee is improperly classified as exempt, the employer, if sued, will liable for back overtime wages that should have been paid but were not, as well as interest. The employer may also be liable for damages and attorney fees and costs.
To satisfy the salary basis test and be exempt, the employee must be paid the same amount per week, regardless of the number of hours he or she actually works, and the salary must be at least $23,660 per year ($455 per week). Starting December 1, 2016, the salary was to be at least $47,476 per year ($913 per week ). The regulation adopting the new standard, however, was subject to an injunction against implementation by a federal court decision. Whether the increase actually occurs will be dependent upon further court action and possible legislative charges.
Each exempt category of employment has its own duties test; for example, to qualify as exempt, an executive employee's primary duty must be managing the organization, or managing a customarily recognized department or subdivision of the organization (29 C.F.R. 541.100). FLSA regulations discuss what is meant by "primary duty" (29 C.F.R. 541.700) and give examples of what may be considered to be "management" duties (29 C.F.R. 541.102). The executive must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent and have the authority to hire or fire other employees, or the executive employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight. See 29 C.F.R. 541.105 for an explanation of what is meant by "particular weight."
An administrative employee is exempt if the employee’s primary function is to perform office or non-manual work, directly related to the management or general business operations of the employer or the employer’s customers, that includes the exercise of discretion and independent judgment with respect to matters of significance (29 C.F.R. 541.200). FLSA regulations provide guidance as to what is meant by "directly related to the management or general business operations" (29 C.F.R. 541.201), "discretion and independent judgment" (29 C.F.R. 541.202), and give examples of the administrative exemption (29 C.F.R. 541.203).
To qualify for an exemption as a professional employee requires the position's primary duty be the performance of work requiring advanced knowledge (work which is predominantly intellectual in character) and the consistent exercise of discretion and judgment. The advanced knowledge must be in a field of science or learning and be customarily acquired by a prolonged course of specialized intellectual instruction. See 29 C.F.R. 541 Subpart D for FLSA rules explaining this exemption.
To qualify for a computer employee exemption, the employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field. The salary must be not less than $455 per week or, if compensated on an hourly basis, not less than $27.63 an hour. Additional information regarding this exemption is available from the U.S. Department of Labor 's Fact Sheet No. 17E: Exemption for Employees in Computer-Related Occupations Under the FLSA.
Can the Work Period Cover Something Other than Seven Days? Police, Fire, and Hospitals
Law enforcement and fire fighters are not necessarily eligible for overtime if they work over 40 hours in a 7-day work week. The trigger for overtime for police officers is 171 hours in a 28-day work period and for fire fighters is 212 hours in that same period. However, law enforcement and fire departments may establish a work period of from 7 to 28 days, with the number of hours for triggering overtime prorated. So, for work periods of at least 7 but less than 28 days, overtime pay is required when the number of hours worked exceeds the number of hours that bears the same relationship to 212 (fire) or 171 (police) as the number of days in the work period bears to 28. For example, fire protection personnel are due overtime under such a plan after 106 hours worked during a 14-day work period, while law enforcement personnel must receive overtime after 86 hours worked during a 14-day work period. For additional information, see the U.S. Department of Labor's Fact Sheet No. 8: .
Hospitals may adopt, by agreement with their employees, a 14-day work period instead of the usual 7-day workweek, if the employees are paid at least time and one-half their regular rates for hours worked over 8 in a day or 80 in a 14-day work period, whichever is the greater number of overtime hours.
How Is Sick leave, Holidays, Vacations, Etc. Handled in Calculating Hours?
When determining the number of hours an employee has worked during a workweek for purposes of providing overtime pay or comp time, only hours of actual work are counted. Thus, if an employee takes a vacation day (or a holiday or sick leave) on Monday and then works ten hours a day for the next four days, there would be no overtime pay for the week since the total number of hours worked during the week has not exceeded 40 hours (29 C.F.R. 778.218).
Can Compensatory (or "Comp") Time Be Given Instead of Overtime Pay?
Comp time allows an employee to take paid time off work instead of being paid overtime pay. Comp time accumulates in the same fashion as overtime pay; that is, for every hour worked over 40 hours during the workweek, the employee, if he or she chooses to do so and the use of comp time has been agreed to, accumulates comp time at the rate of an hour and one-half for each overtime hour.
A public agency may provide for comp time to its employees as long as it is provided for under a collective bargaining agreement, employment agreement, or memorandum of understanding. The "agreement" can be made in one of three ways: through negotiation with individual employees; through negotiation with employees' representatives; or through negotiation with a recognized collective bargaining agent.
The FLSA sets the maximum amount of comp time that may be accumulated: employees who work in "a public safety activity, emergency response activity, or seasonal activity" may accumulate up to a maximum of 480 hours of comp time, while other employees are limited to 240 hours. Local jurisdictions may, however, set lower limits on the number of hours of comp time which may be accrued by employees. Comp time use must be permitted "within a reasonable period" after the employee has made a request, if the use does not unduly disrupt the operations of the public agency. See 29 U.S.C. Sec. 207(o).
It is important to remember that cities in Washington State must also comply with the state Minimum Wage Act, which is codified in chapter 49.46 RCW and its administrative regulations set in chapter 296-128 WAC.
Many of the provisions of the state law and the federal FLSA are identical but there are some differences. When there is a difference, the city must comply with the most liberal law when viewed from the perspective of the employee:
For more information on minimum wage issues including further guidelines and examples, see Minimum Wage.
The following is a selection of key court decisions that help in the understanding of the Fair Labor Standards Act and its application to municipal employees.
Public employer may require its employees to use their accumulated compensatory time.
See Christensen v. Harris County, 68 U.S.L.W. 4343 (2000) – The Supreme Court, in a decision issued May 1, 2000, determined that a public employer may require its employees to use their accumulated compensatory time, allowing the employer to avoid the potential adverse fiscal consequences of large leave balances. In reaching its decision, the court, in Christensen v. Harris County, rejected the argument raised by employees that a forced use was only possible if agreed to by the parties. 29 U.S.C. § 207(o)(5) requires employers to allow the usage of compensatory time "within a reasonable period after making the request," provided the employer's operations are not unduly disrupted. The Court reasoned that this language was a restriction on the employer's ability to limit the use of the time, not a limit on the employer's ability to require employees to take the time off. In reaching its 6-3 decision, the Court noted that, under the Fair Labor Standards Act, an employer can reduce the number of hours an employee works and may also "cash out" compensatory leave balances through payment. Harris County's policy of requiring the use of the leave balances, the Court concluded, merely did both allowable steps at once.
State and local governments must fully comply with the FLSA's minimum wage and overtime rules.
See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)
Employers are required to comply with whichever law, state or federal, is more liberal when viewed from the employee's perspective.
See Washington State Department of Labor and Industries v. Common Carriers, Inc., 111 Wn.2d 586 (1988)
Exempt Status of Public Employees is retained even if the employer docks for time off for less than full-day absences.
See Abshire v. County of Kern, 908 F.2d 483 (9th Circuit, 1990) – A case in which the exempt status of public employees was challenged if the employer docked for absences of less than a day, such as medical appointments. In response to this case, a new federal regulation was adopted in 1992, the public employer proviso, in 29 C.F.R. § 541.5d, to retain the exempt status of public employees even if the employer docks for time off for less than full-day absences.
U.S. Department of Labor
- Handy Reference Guide to the Fair Labor Standards Act (2016) – A fairly extensive guide discussing the FLSA, set out in straight-forward language, without reference to statutes or regulations, capturing the essence of the act's requirements
- Employment Law Guide - Minimum Wage and Overtime Pay (2009) – A comprehensive guide providing quick information regarding the application of the FLSA, accompanied by links to other relevant federal materials relating to the law and its interpretations
- FLSA Employer/Employee Advisor – Brief explanation of what the FLSA does-and does not-require and then allows the reader to review answers to frequently asked questions or to explore information on FLSA coverage, child labor rules, determining hours worked and other FLSA topics.
- Opinion letters concerning the FLSA – These rulings and interpretations of statutory or regulatory issues are designed to provide meaningful and comprehensive guidance and compliance assistance for employers and employees.
- Opinion letter (2006) – Discusses what is "nominal" payment to volunteer firefighters and what it means to be volunteering either for the "same public entity" or be performing "the same type of services" as a volunteer performs as part of his or her employment
- Fact Sheets – A series of papers and "fact sheets" that explore, through the use and interpretation of statutes and regulations, a series of single issues relating to application of the FLSA.