Weekly HR News, FLSA - Exempt v. Nonexempt Employees

Most city employees are considered “nonexempt” by the Fair Labor Standards Act (FLSA) and must be paid overtime if they work more than 40 hours during a seven day workweek.  The seven day workweek should be defined within your city personnel policies.  The FLSA salary test currently provides that any employee who earns less than $455 a week (or $23,660 a year) is entitled to overtime pay, regardless of the employee’s position.  Because this has only been changed once since 1975, this test is currently under review and may be modified to increase the salary threshold in the near future.  Some are suggesting that the weekly wage threshold be changed to as much as $1000 per week, so if this does occur, cities will need to review all their exempt employees to be certain that they would still maintain the exempt status. As always, KLC will notify you if any changes actually occur. 

Currently, if an employee makes more than $455 you must then look at the categories of exemptions that are provided for within the FLSA, which are executive, professional, administrative, computer and highly compensated employees.   If the employee does not fall into one of those categories, no matter the salary, they must receive overtime.  For more information on the specifics of these exemptions see the Department of Labor Fact Sheet #17A at http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.pdf.

 It is also important that cities be aware that these exemptions may not apply to all first responders, even if they make more than $455 per week and seem to fit into an exemption.  803 KAR 1:070(2)(a) states that overtime must be paid to “police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers, and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling, or extinguishing fires of any type; rescuing fire, crime, or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining, and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work…”  To read the full text of this regulation see http://www.lrc.ky.gov/kar/803/001/070.htm.

Whether an employee should be receiving overtime is a fact specific question based on their salary as well as job duties.  Making the wrong determination can be very costly to cities; therefore, the city should consult with its city attorney in order to determine which city employees are exempt from overtime. In addition, KLC has an exempt v. nonexempt employee checklist that can assist with these determinations. 

 For a copy of the checklist, questions on wage and hour issues or other personnel matters, contact Andrea Shindlebower with the KLC Legal Department.