Why does NACo keep stressing the importance of changing FLSA - the Fair Labor Standards Act? What's the big deal?
The Fair Labor Standards Act (FLSA) is an important law in our country with a long history. It was adopted in the 1930s, along with many other measures including Social Security, as part of the federal government's attack on the Great Depression. It included child labor restrictions, the minimum wage and overtime "penalties" and limits intended to add to workplace fairness and help economic recovery.
It never was designed to apply to the public sector. Indeed, it never did until the mid-1970s. Then it was extended to cover public employees briefly until the Supreme Court ruled that its extension to government employees was unconstitutional.
A decade later, following a 1985 ruling, the Supreme Court changed its mind. Since then, counties have been suffering from a form of a "Great Depression" trying to figure out a law which is confusing and unreasonable when applied to government.
FLSA was born in a mass production, industrial economy. Trying to apply it to counties and cities and to executives, administrators, professionals, firefighters, paramedics, or police. has been a nightmare all over the country. Scores of lawsuits have been and are being filed. Does the law breed confusion? Judge yourself ...
· Do counties have to pay time and a half for work over 40 hours in a week to employees who are highly paid - such as directors and managers - just because agency payroll rules for accountability purposes require recording how many hours were worked?
In some cases, the answer is "yes." There is a risk of back pay for two or three years, lawyer fees and damages in FLSA cases.
· Are police officers paid - sometimes at time and a half - for playing with and caring for, or "bonding" with "Rover" or "Spot," the police dog?
Same answer - in some cases, "yes." How about the time spent with "Trigger," the police horse? Same as the above. Ironically, in many cases, the origins of the "dog squads" were volunteers seeking to bring their dogs to work.
· Should full-time paramedics, working 24-hour shifts just like their firefighter colleagues, have to be paid time and a half for work after 40 hours because they aren't specifically included within the definition of "police or fire" personnel?
Yes - that's what it looks like. The 24-hour shift is the hallmark of the firefighter/paramedic world - a world not meant to be covered by this 60- year-old law in the first place. Just try suggesting in collective bargaining that the 24-hour shift be replaced with eight-hour shifts to see the popularity of the idea.
· Does a county employee, who meets all "tests" for being exempt from FLSA, lose the exemption because she or he is suspended for one or two days as a matter of discipline?
Could be. Rulings and interpretations are different but it looks like suspensions of less than a week should be avoided except for major safety violations.
The reality is that trying to figure out what is required under this law, let alone handle the many lawsuits that arise out of these types of situations have caused tremendous expense and staff time in counties throughout America.
The law is simply not a "good fit" for public agencies, which already offer many other layers of employee protection. These include collective bargaining contracts, civil service rules, ordinances, and charters.
The created by this law has opened the door for some employee groups to harvest windfalls, including expensive settlements, rather than face the risk of litigation. So much so, that the original purposes of worker protection against abuse, which led to FLSA's passage in the first place, are over shadowed when it comes to public employee coverage.
The law needs fundamental reform to make sense for government. That is what's behind NACo's long campaign for FLSA change!
P.S. Did we talk about the claim, by enforcement employees of the Wage and Hour Division of the Department of Labor (the group responsible for FLSA enforcement), claiming that the U.S. Department of Labor was violating FLSA? At least we aren't the only ones confused!
Hope this helps.
THE HR DOCTOR.
(HR Doctor was written by Phil Rosenberg, director of Human Resources for Broward County, Fla.)