Three Things You Should Know about FLSA and the MWA (but Maybe You Don’t)

Although the Fair Labor Standards Act (FLSA) and state Minimum Wage Act (MWA) are not new, they still raise questions. Here are a few issues you may not be aware of.

While nonexempt employees earn overtime for work over 40 hours during a typical workweek, overtime is only triggered after 40 hours have actually been worked.

Suppose Ann is a nonexempt worker in the parks department. Monday is a paid holiday, she takes a vacation day Tuesday, and is on paid sick leave Wednesday. Then Ann works 12 hours on both Thursday and Friday. She marks down 48 hours on her timesheet. Should Ann be paid for eight hours of overtime for the week? No. Overtime pay is only available for hours actually worked during the work week. Holiday, vacation, and sick leave hours are not counted. Since Ann only worked 24 hours, she is not eligible for overtime pay. See 29 CFR § 779.18(2).

The general rule is that an employer cannot reduce (dock) an exempt employee’s compensation for missed work, but a public employer can avoid that general rule.

Nonexempt employees are paid for the hours they work. If a nonexempt employee misses an hour of work, he or she is not paid for that hour, unless that hour is covered by some type of paid leave. Exempt employees – those not subject to the minimum wage and overtime requirements of the FLSA and MWA - are treated differently. The general rule is that, because they are exempt from overtime rules, “an exempt employee must receive the full salary for any week in which the employee performs any work without regard to the number of days or hours worked.” 29 CFR § 541.602.

However, a public employer can avoid this general rule for exempt employees by establishing a pay system that includes salary deductions for absences of less than a day, when that pay system is “established by statute, ordinance, or regulation, or by a policy or practice established pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave.” 29 CFR. § 541.710(a). A state law that embodies this principle of public accountability is the state constitution’s gift of public funds prohibition in article 8, section 7. The same authorization for public employers also exists under the state MWA. WAC 296-128-533.

In other words, based on principles of public accountability, public employers are free to treat exempt employees the same as nonexempt employees for the purposes of paid leave policies; they may dictate the hours that an exempt employee must work. So, unlike private employers, public employers may dock exempt employees who miss work and who have used up all paid leave.

Reductions in compensation are also allowed for:

• A penalty imposed in good faith for infractions of safety rules of major significance (those relating to the prevention of serious danger to the plant, the public, or other employees). WAC 296-128-532(3)(f); 29 CFR § 541.602(b)(4). 

• If the employee performs no work in a particular week, regardless of the circumstances, the employer may deduct for the entire week. WAC 296-128-532(2)(a); 29 CFR § 541.602(a).

• Absences due to a furlough authorized by law due to a budget-required leave of absence. WAC 296-128-533(1)(c); 29 CFR § 541.602(a).

• In the first and final week of employment, an employee's salary may be prorated for the actual days worked. WAC 296-128-532(3)(e); 29 CFR § 541.602(b)(6).

• If the employee is covered by the Family and Medical Leave Act (FMLA), deductions may be made for partial day absences due to leave taken according to that act. WAC 296-128-532(3)(d); 29 CFR § 541.602(b)(7).

Deductions may not be made for absences caused by employee jury duty, attendance as a witness, or temporary military leave (WAC 296-128-532(4); 29 CFR § 541.602(b)(3)), or for lack of work for any amount of time less than a full week. 29 § CFR 541.602(a),

The “penalty” for improperly docking an exempt employee’s compensation is significant, as it can result in the loss of the employee’s FLSA exempt status and require payment of overtime. 29 CFR § 541.603; see also WAC 296-128-532(5).

An employer may owe an employee overtime pay if the employee volunteers to perform work for his/her employer while off duty.

Janette works 40 hours a week in the parks department as a maintenance worker. On Saturday, while she is off duty, she volunteers to pick up litter in a park. If Janette spends two hours picking up litter, should she be paid for two hours of overtime? Probably.

The FLSA, at 29 USC § 203(e)(4)(A)(2), allows employees of a public agency to volunteer services for their employer only if the employee receives no compensation and:

Such volunteer services are not the “same type of services” which the individual is employed to perform for such public agency.

“Same type of services” is defined by 29 CFR § 553.103(a) to mean “similar or identical services.” 29 CFR § 553.30 provides some examples of what is and what is not the “same type of service”:

(3) For example, if a public park employee primarily engaged in playground maintenance also from time to time cleans an evening recreation center operated by the same agency, the additional work would be considered hours worked for the same employer and subject to the Act's overtime requirements because it is not in a different capacity. This would be the case even though the work was occasional or sporadic, and, was not regularly scheduled. Public safety employees taking on any kind of security or safety function within the same local government are never considered to be employed in a different capacity.

(4) However, if a bookkeeper for a municipal park agency or a city mail clerk occasionally referees for an adult evening basketball league sponsored by the city, the hours worked as a referee would be considered to be in a different general occupational category than the primary employment and would not be counted as hours worked for overtime purposes on the regular job. A person regularly employed as a bus driver may assist in crowd control, for example, at an event such as a winter festival, and in doing so, would be deemed to be serving in a different capacity.

Since Janette will be performing duties similar to those she performs during her regular employment, the two volunteer hours would need to be paid and, since they would cause the total hours worked that week to exceed 40 hours, those two hours would trigger the requirement of overtime pay.

Have a question or comment about this information? Let me know below or contact me directly at psullivan@mrsc.org.