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| © 2004 Morris Jennings |
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PUBLIC SCHOOL DISTRICTS, MUNICIPALITIES, COUNTIES, STATES, and other state/local government agencies and institutions
School districts, municipalities, counties, state agencies, and public institutions often encounter circumstances that cause them to have inadvertent but expensive compliance failures. Common FLSA difficulties concern exemption classification, employment relationship, joint employment, dual jobs, hours worked determinations, overtime compensation computation, and compensatory-time practices.
Since 1999, hundreds of school districts have been sued, in U. S. District Courts, by thousands of employee plaintiffs alleging FLSA violations. The expenses of judgments and settlements (back wages and legal costs) have burdened the taxpayers of these districts. Even some small rural school districts have settled cases by paying > $500,000 (each) in back wages and plaintiffs' attorneys' fees. Some of the districts that did not settle found that it was even more expensive to "have their day in court."
Collective-action suits against other types of public agencies are also common, especially involving fire protection, law enforcement, and emergency medical services.
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In most states, the rights of state agency employees to sue for back wages under FLSA are restricted because of U. S. Supreme Court rulings. The effect is vigorous enforcement by DOL and suits, by employees, against possible joint employers (state agency directors, managers, and supervisors).
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Consultation with Morris can be very beneficial to school districts and other public agencies and institutions, whether it is to help you in the resolution of immediate questions, perform an overview or compliance evaluation, or determine the validity of DOL assertions if you are being investigated. Hassles and expenses may be avoided or reduced.
If litigation is involved, Morris is able to work with your attorney as a consulting expert.
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FLSA Section 7(k) Exemption
United States Code, Title 29, Chapter 8, Section 207(k)
Prior to 1974, the only public agencies covered by FLSA were those specifically named in the statute; for example, schools, colleges, preschools, hospitals, nursing homes, and similar institutions. When the FLSA provisions were expanded (in 1974) to nearly all government operations, exemptions were provided to reduce the overtime compensation burden of newly covered public agencies that provide police protection (including corrections officers of government-operated jails and prisons) and fire prevention/protection/suppression. The dominant exemption is 7(k), a limited exception to the workweek and forty-hour standards. The relevant regulations set forth a very broad and ambiguous application of FLSA section 7(k) exemption. As of the most recent revision of this web site, these regulations have not been updated since January 16, 1987. The real-world application of section 7(k) exemption is often not as described in the regulations, especially with regard to fire protection and EMS employees. Events that have brought about this result are an obscure 1999 FLSA amendment and several United States Circuit Courts of Appeal decisions. On July 28, 2008, DOL proposed conforming modifications of the regulations (http://www.dol.gov/esa/whd/regulations/FLSA2008NPRMFactSheet.pdf). If the proposal becomes a final rule, the regulatory guidance will be much more useful than has been the case during the past decade.
Many public agencies need to carefully examine current section 7(k) exemption determinations, classifications, and policies, especially with regard to fire protection/suppression and EMS. Substantial back wage underpayments might be accumulating.
In addition to classification issues, methods of calculation of wages with regard to section 7(k) scenarios are often not in compliance with FLSA provisions. Investigations or litigation to collect back wages are common even when the employees do qualify for 7(k) exemption.
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The explanations above do not specifically refer to section 13(b)(20) exemption (applicable to very small fire protection or law enforcement agencies). The comments regarding obsolescence of the regulation with regard to 7(k) are somewhat relevant to 13(b)(20) exemption consideration.
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This page is dedicated to public employers (state/local government, public school districts, and other public agencies and institutions). Small and large businesses, not-for-profit organizations, domestic employers, and professional employer organizations are discussed at OTHER EMPLOYERS. Contractors who perform services or construction for federal agencies, or construction that is assisted through federal grants, loans, or guaranties, are discussed on the SERVICE CONTRACT ACT/DAVIS BACON & RELATED ACTS page.
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