Fair Labor Standards Act Reform
The Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, equal pay, record keeping, and child labor standards. When the FLSA was first enacted, it did not apply to state and local governments. It was not until 1972 that Congress included state and local governments under the FLSA. Actual application of the FLSA to state and local governments did not occur until 1986 because the Supreme Court ruled in National League of Cities v. Usery that application of the law to state and local governments was a violation of the Tenth Amendment to the Constitution. Nine years later, the Supreme Court reversed itself in Garcia v. San Antonio Metropolitan Transit Authority, ruling that application of the FLSA provisions to state and local governments was Constitutional.
This ruling has caused many concerns for state and local governments. In addition to interfering with state sovereignty and local authority, the application of the FLSA to state and local governments has raised questions of public accountability. The issues include the salary basis test and the duties test. The Department of Labor developed regulations defining exemptions to the FLSA before the law was applied to state and local governments. The regulations provide that workers fitting the description of executive, administrative, and professional employees are exempt from the FLSA's overtime requirements. In order to be exempt, these workers must pass the salary basis and duties tests. Under the salary basis test, an employee must be paid a predetermined amount on a weekly or less frequent basis. This amount cannot be subject to deduction for absences of less than one day. The DOL partially addressed this issue in 1992, allowing state and local governments to dock pay for absences of less than one day in accordance with principles of public accountability. However, the DOL failed to address the problem of retroactive liability for state and local governments who docked the pay of employees prior to 1992.
Fair Labor Standards Act
WHEREAS, a number of decisions issued by federal courts have resulted in highly paid exempt employees being given overtime compensation for failure to pay them on a salary basis; and
WHEREAS, many state and local governments are not permitted to pay employees for hours not worked; and
WHEREAS, the Department of Labor has issued regulations effective September 18, 1992 that allow state and local employers to deduct from the salary of exempt employees for absences of less than one day; and
WHEREAS, the Department of Labor's regulations were prospective, leaving state and local governments with potential back pay liability for alleged violations that occurred prior to September 18, 1992; and
WHEREAS, due to budgetary constraints, state and local governments lack the funds to pay for these unforeseen liabilities; and
WHEREAS, legislation (S. 1354, H.R. 1309) has been introduced that would amend the FLSA to allow state and local governments to deduct for absences of less than one day; now, therefore, be it
RESOLVED, that the International Personnel Management Association urges Congress to enact these legislative proposals.
In adopting the regulations, the DOL failed to address the loss of salaried status if an employee is subject to pay docking for a period of less than one week for a violation of a minor safety rule. This interferes with state and local authority to discipline and control employees in the manner best suited for their particular situation. On February 19, 1997, the Supreme Court addressed this issue in Auer v. Robbins. In its decision, the Court upheld the applicability of the salary basis test to the public sector and adopted a standard proposed by the Labor Department for determining when the salary of exempt employees are "subject to" disciplinary deductions. Under this standard, there needs to be either a practice of making deductions or a policy that creates a "significant likelihood" of such deductions.
Problems have also arisen under the "duties test" which requires employees to meet the description of "executive, administrative or professional" employee in order to be exempt. Many court cases interpreting the law have called into question the exempt status of many well-paid, highly-educated, public employees. For these reasons, the Association supports comprehensive reform of the FLSA.
Fair Labor Standards Act
WHEREAS, since April 15, 1986, state and local governments have been covered by the provisions of the Fair Labor Standards Act (FLSA); and
WHEREAS, most of the regulations implementing the FLSA were promulgated prior to the law being made applicable to state and local governments; and
WHEREAS, the Department of Labor has generally refused to modify the FLSA regulations to recognize differences in public and private sector employment; and
WHEREAS, federal courts have issued a series of decisions providing overtime compensation to highly compensated state and local government managers and supervisors; and
WHEREAS, these decisions have resulted in fiscal difficulties and imposed unfunded federal mandates on state and local governments; now, therefore, be it
RESOLVED, that the International Personnel Management Association urges Congress to enact legislation providing for the comprehensive reform of the FLSA; and be it further
RESOLVED, that any legislation passed by Congress should be retroactive, except where a court has issued a final judgement in a case prior to the date of enactment.
Another difficulty with the FLSA application to state and local governments exists in the treatment of emergency medical service employees (EMS). IPMA supports amending Section 207(k) to include EMS personnel in the partial exemption from overtime requirements for public safety employees. Recently, courts have decided that EMS personnel are not covered by the Section 207(k) partial overtime exemption. This exemption provides that fire protection employees only have to be paid overtime for those hours worked in excess of 212 hours during a 28 day work period and police officers only have to be paid overtime for hours worked over 171 hours during a similar time period. As a result of the decisions, EMS personnel must be paid overtime for hours worked in excess of 40 during each workweek. This could have a severe financial impact on jurisdictions and it is important that EMS personnel work the same shifts as the firefighters or law enforcement officers that they are assigned to work with.
Emergency Medical Service Personnel Resolution
WHEREAS, the Fair Labor Standards Act (FLSA) covers State and local government employees; and
WHEREAS, Section 207(K) of the FLSA provides partial exemption from overtime compensation for public safety employees; and
WHEREAS, in many jurisdictions, emergency medical service personnel are assigned either to the fire department or the police department or any other department; and
WHEREAS, it is important that emergency medical service personnel work the same shifts as other public safety officers; and
WHEREAS, several federal courts have ruled that emergency medical service personnel are not covered by Section 207(K) and are entitled to overtime for all hours worked in excess of 40 during a workweek; and
WHEREAS, these court decisions and the Department of Labor's FLSA regulations do not recognize the changing nature of public safety activities; and
WHEREAS, these decisions have had a serious financial impact on local governments and could affect public safety; now, therefore, be it
RESOLVED, that the International Personnel Management Association supports the amendment of Section 207(K) of the FLSA to ensure that the partial overtime exemption is available for emergency medical service personnel, and be it further
RESOLVED, that the International Personnel Management Association urges the Department of Labor to update its regulations implementing Section 207(K).