The application of the Fair Labor Standards Act can pose problems for municipalities due to its complicated details.
At the Massachusetts Municipal Personnel Association’s March 3 meeting in Andover, attorney Kathryn Murphy of Murphy, Hesse, Toomey and Lehane explained some of the key points that municipal managers need to know about the FLSA.
The FLSA is a wage and hour law administered by the U.S. Department of Labor’s Wage and Hour Division, which has the authority to interpret the law, audit employers for compliance, and bring enforcement actions against employers.
The Wage and Hour Division also publishes fact sheets, posters and compliance assistance information.
The FLSA:
• Sets minimum wage requirements
• Sets overtime requirements
• Generally does not mandate paid time off (e.g., vacations, sick leave and holidays)
• Generally does not mandate lunch breaks or other types of breaks
Massachusetts has laws relative to payment for time off and breaks, Murphy said.
She described the relationship between the FLSA and state laws and collective bargaining agreements as follows:
• The FLSA provides minimum standards that may be extended, but cannot be waived or reduced.
• Employers must comply with any federal, state or municipal laws, regulations or ordinances establishing a higher minimum wage or lower maximum workweek than those established under the FLSA.
• The FLSA does not trump or undo separate obligations under other state law(s) or collective bargaining agreements. State law or a collective bargaining agreement, for instance, may require additional compensation or prohibit a practice that would be permitted under the FLSA.
Murphy said managers should separately analyze obligations under other laws or agreements. She added that state law – the timely payment of wage act – expressly applies to public-sector employers.
The FLSA classifies certain employees as exempt from the provisions of the act.
Non-exempt employees must be paid a minimum wage for all hours worked and overtime at one and a half times the employee’s “regular hourly rate” for work over 40 hours in a work week.
Exempt employees are divided into three categories: bona fide executive, bona fide administrative and bona fide professional. Generally, these titles involve supervisory and management responsibilities, as well as the use of independent judgment and advanced knowledge.
A job title alone does not determine exempt status, Murphy said.
To be exempt, a position must generally meet both of the following tests:
• Job duties and responsibilities of the employee must meet the DOL regulatory definition of those associated with a bona fide executive, administrative, or professional employee; and
• The employee must be paid the statutorily prescribed salary and be paid on a salary basis, where applicable.
A bona fide “executive” position, according to Murphy, must meet all of the following criteria:
• The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; and
• The employee must customarily and regularly direct work of two or more other full-time employees or their equivalent; and
• The employee must have authority to hire or fire other employees, or the 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; and
• The employee must be paid on a salary basis (as defined in regulations), at a rate of at least $455 per week.
A bona fide “administrative” position must meet all of the following criteria:
• Employee’s primary duty must be the performance of office or non-manual work directly related to management or general business operations of the employer or the employer’s customers; and
• Employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance; and
• Employee must be paid on a salary basis, at a rate of at least $455 per week.
A bona fide “professional” position must meet all of the following criteria:
• The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; and
• The advanced knowledge must be in a field of science or learning; and
• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction; and
• Unless otherwise stated in the regulations, the employee must be paid on a salary basis (as defined in the regulations), at a rate of at least $455 per week.
Also at the MMPA meeting, attendees heard a legal update from attorney Jan Gould of Deutsch Williams, who covered topics such as wage and hour laws, compensation for travel, and anti-bullying legislation.
• The Fair Labor Standards Act and Public Sector Employers (508K PDF)
Presentation by Kathryn M. Murphy, Murphy, Hesse, Toomey & Lehane
• Recent Developments in Labor, Employment and School Law (528K PDF)
Presentation by Elizabeth B. Valerio, Deutsch Williams Brooks Derensis & Holland
• Chapter 151B, Subsection 9 1/2 (unlawful discrimination practices) (136K PDF)