Posts Tagged: coffield law

Virginia Values Act: Powerful Protections for Virginia Employees

Effective July 1, 2020, the Virginia Values Act (“VVA”) offers sweeping protections for Virginia workers against several categories of discrimination. The law is broader in scope than some similar federal laws, covers smaller employers than federal laws, and unlike most federal employment laws, is not subject to a cap on compensatory damages. In short, it is a powerful law for protecting the rights of Virginia employees.

This post will discuss some of the key provisions of the VVA, which amends the Virginia Human Rights Act (“VHRA”). The bulk of the new law as it relates to employment rights is codified at VA Code §§ 2.2-3900-3908.

SCOPE OF PROHIBITED DISCRIMINATION

The VVA makes it illegal under the VHRA for an employer to:

Fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to such individual’s compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions including lactation, age, status as a veteran, or national origin.

VA Code § 2.2-3905(B). The prohibition against race discrimination includes a prohibition on hairstyle discrimination. This is because a distinct piece of legislative, House Bill 1514, clarified:

The terms “because of race” or “on the basis of race” or terms of similar import when used in reference to discrimination in the Code and acts of the General Assembly include because of or on the basis of traits historically associated with race, including hair texture, hair type, and protective hairstyles such as braids, locks, and twists.

VA Code § 2.2-3901(B). Also notably, House Bill 827 expanded the VHRA’s prohibition against pregnancy discrimination to allow a cause of action against an employer who

refuse[s] to make reasonable accommodation to the known limitations of a person related to pregnancy, childbirth, or related medical conditions, unless the employer can demonstrate that the accommodation would impose an undue hardship on the employer.

VA Code § 2.2-3904(A). Under the law, these reasonable pregnancy accommodations may include:

more frequent or longer bathroom breaks, breaks to express breast milk, access to a private location other than a bathroom for the expression of breast milk, acquisition or modification of equipment or access to or modification of employee seating, a temporary transfer to a less strenuous or hazardous position, assistance with manual labor, job restructuring, a modified work schedule, light duty assignments, and leave to recover from childbirth.

VA Code § 2.2-3904(A). The amended VHRA also makes it unlawful for employers to retaliate against workers for seeking such accommodations. See VA Code § 2.2-3905(B)(7).

MOTIVATING FACTOR CAUSATION STANDARD FOR DISCRIMINATORY EMPLOYMENT PRACTICES

The amended VHRA makes discrimination for any of the specified reasons unlawful if the discrimination was a “motivating factor” of an employment practice, even if other, non-discriminatory, factors also played a role in the practice. This generally makes it unlawful, except where provided elsewhere in the law, for

an employer to use race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, status as a veteran, or national origin as a motivating factor for any employment practice, even though other factors also motivate the practice.

VA Code § 2.2-3905(B)(6).

EMPLOYER DEFENSES AND EXCEPTIONS

The amended VHRA does include some Title VII-esque exceptions from its prohibitions on certain types of employment discrimination. These include:

  • Where “religion, sex, or age is a bona fide occupational qualification reasonably necessary to the normal operation” of that particular employer;
  • Where the employer is a religious educational institution and it hires or employs employees of its particular religion;
  • Where the employer applies different standards of compensation, or different terms, conditions, or privileges of employment, pursuant to a “bona fide seniority or merit system,” or a system that measures earnings by quantity or quality of production, or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, sexual orientation, gender identity, marital status, pregnancy, childbirth or related medical conditions, age, status as a veteran, or national origin;
  • Where an employer gives and acts upon the results of any “professionally developed ability test,” provided that such test, its administration, or an action upon the results is not designed, intended, or used to discriminate on any of the prohibited bases;
  • Where an employer provide reasonable accommodations related to pregnancy, childbirth or related medical conditions, and lactation, when such accommodations are requested by the employee; and
  • Where an employer to conditions employment or premises access based upon citizenship where the employer is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute or regulation of the federal government or any executive order of the President of the United States.

VA Code § 2.2-3905(C).

RETALIATION PROHIBITED

Importantly, the amended VHRA prohibits retaliation for opposing unlawful employment practices or for filing a complaint or participating in an investigation under the VHRA. VA Code § 2.2-3905(B)(7).

EMPLOYER COVERAGE

The amended VHRA has a slightly broader scope than Title VII and the federal Age Discrimination in Employment Act (“ADEA”) when it comes to which employers are subject to its requirements. Title VII generally applies to employers with 15 or more employees; the ADEA applies to employers with 20 or more employees. In cases of discrimination that are not unlawful discharges, the amended VHRA parallels Title VII, applying to employers “employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.” In cases of unlawful discharge, the amended VHRA covers more employers than Title VII. When the unlawful discharge is not based on age, the amended VHRA applies to employers with more than 5 employees. When the unlawful discharge is based on age, the amended VHRA applies to employers with more than 5 but fewer than 20 employees. VA Code § 2.2-3905(A).

AGE HARASSMENT

Unlike the federal ADEA, which only allows recovery of lost wages and liquidated damages, the amended VHRA allows general compensatory / emotional distress and punitive damages for age discrimination. The practical effect of these additional remedies is that the VHRA covers more types of age discrimination than the ADEA. This is because individuals subject to distressing age-based harassment at work, but who do not suffer lost wages, may have a viable legal claim for damages under the amended VHRA, where they did not have a viable claim for damages under the ADEA.

DAMAGES PROVISIONS: UNCAPPED COMPENSATORY DAMAGES AND A HIGHER PUNITIVE DAMAGES CAP

The amended VHRA allows for a private cause of action in state court. VA Code § 2.2-3908(A). Unlike Title VII claims, which are subject to caps on compensatory and punitive damages ranging from $50,000 to $300,000, depending on the size of the employer, claims brought under the amended VHRA are not subject to a cap on compensatory damages. See VA Code § 2.2-3908(B). Punitive damages are subject to Virginia’s $350,000 cap. VA Code § 8.01-38.1.

Therefore, under the amended VHRA, even a small employer could be required to pay compensatory damages of more than $300,000, plus punitive damages of up to $350,000. This makes the damages provision of the amended VHRA far more powerful than Title VII. This is because Title VII limits the exposure of the smallest employers to $50,000 in compensatory and punitive damages combined, and limits the exposures of the largest employers to $300,000 in compensatory and punitive damages combined. The amended VHRA has no cap on compensatory damages and a $350,000 cap on punitive damages.

In addition, the amended VHRA provides that a prevailing party may be awarded reasonable attorney’s fees and costs.

ADMINISTRATIVE PROCEDURE

Similar to Title VII and the ADEA, the amended VHRA requires employees to follow an administrative procedure before bringing their claims in court. Specifically, an employee seeking to pursue a lawsuit against an employer for unlawful discrimination under the VHRA must first file a complaint with the Virginia Division of Human Rights. The complaint should provide sufficient details about “the time, place, and facts surrounding the alleged unlawful discrimination.” VA Code §§ 2.2-3908(A) & 2.2-3907(A).

After the complaint is perfected, the Division will serve a charge on the respondent and send a notice to all parties with important information. VA Code § 2.2-3907(B). The parties have the option of agreeing to submit the matter to voluntary mediation. VA Code § 2.2-3907(C). If the parties do not agree to mediation, or if mediation is not successful, the Division will investigate “to determine whether there is reasonable cause to believe the alleged discrimination occurred.” VA Code § 2.2-3907(D).

If the Division concludes there is no reasonable cause, it will dismiss the charge and issue to the employee a notice of his right to commence a civil action in court. VA Code § 2.2-3907(E). This is similar to the right-to-sue letters issued by the EEOC in federal Title VII cases, which create a 90-day window for filing suit. VA Code § 2.2-3907(E).

If the Division concludes there is reasonable cause to believe discrimination occurred, the Division must notify the parties and “shall immediately endeavor to eliminate any alleged unlawful discriminatory practice by informal methods.” VA Code  § 2.2-3907(F). If such a resolution proves “unworkable,” the Division will be given notice of his right to commence a civil action. Id. 

During the administrative investigation, either the Division or the complainant may also ask a court for certain temporary relief, pending final determination of the administrative proceedings. VA Code § 2.2-3907(G). However, such a petition must contain a certification by the Division that the particular matter presents exceptional circumstances in which irreparable injury will result from unlawful discrimination in the absence of temporary relief. Id.

Similar to the federal EEOC process, the employee can request that the Division issue notice of suit rights if (1) 180 days have passed since the complaint was filed or (2) the Division determines the investigation is unlikely to conclude within 180 days. VA Code § 2.2-3907(H).

This article also appears on TimCoffieldAttorney.net.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

FLSA Professional Employee Exemption: Learned or Creative or Teaching

The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. However, the law contains several exceptions or “exemptions” from these requirements, most of which turn on a combination of the employees’ pay and the nature of their job duties. For example, Section 13(a)(1) of the FLSA, a.k.a. 29 U.S.C. § 213(a)(1), provides an “exemption” from both minimum wage and overtime pay for certain categories of so-called “white collar” employees — namely, employees working as bona fide executive, administrative, professional, or outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain categories of computer employees. 

To qualify for a white collar exemption, employees must be paid on a salary basis at not less than $684 per week (as of January 1, 2020) and have job duties that satisfy certain requirements. Importantly, job titles do not determine whether an employee is exempt from the FLSA. For an employee to be exempt, her actual real-life job duties and salary must meet all the requirements of the FLSA and the Department of Labor’s implementing regulations.

This post will focus on the exemption for professional employees. There are three general types of exempt professional employees: learned professionals, creative professionals, or teaching professionals. The Department of Labor is also an excellent resource for information about the professional employee exemption. The DOL’s implementing regulations with respect to the professional employee exemption are generally located at 29 CFR §§ 541.300-304.

Learned Professional Exemption 

To qualify for the learned professional employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week, and meet all of the following requirements:

  1. The employee’s primary duty must be the performance of work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. This primary duty test has three elements:

    1. The employee must perform work requiring advanced knowledge;
    2. The advanced knowledge must be in a field of science or learning; and
    3. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. 

29 CFR § 541.301(a)

Definition of “Primary Duty”

As used in the FLSA regulations, “primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty is based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining an employee’s primary duty include, without limitation, the relative importance of any exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 29 CFR § 541.700.

Work Requiring Advanced Knowledge 

The regs define “work requiring advanced knowledge” as work which is “predominantly intellectual” in character, and which includes work requiring the “consistent exercise of discretion and judgment.” Professional work is therefore distinguished from work involving routine mental, manual, mechanical or physical work. A professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level. 29 CFR § 541.301(b).

Field of Science or Learning 

The phrase “fields of science or learning” includes the professions of law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy and other occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades. The regs make this distinction where the knowledge involved in a mechanical arts or skilled trades could be of a fairly advanced type, but is not in a field of science or learning. 29 CFR § 541.301(c).

Customarily Acquired by a Prolonged Course of Specialized Intellectual Instruction 

The phrase “customarily acquired by a prolonged course of specialized intellectual instruction”  restricts the learned professional exemption to professions where specialized academic training is a standard prerequisite for entrance into the profession. The regs indicate the best prima facie evidence that an employee meets this requirement is possession of the appropriate academic degree. 

However, the word “customarily” means the exemption may also be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. Thus, for example, the learned professional exemption may be available to the occasional lawyer who did not go to law school, or the occasional chemist who does not have a degree in chemistry. 

On the other hand, the regs indicate the learned professional exemption is not available for occupations that customarily may be performed with only the general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. 

The learned professional exemption also does not apply to occupations in which most employees acquire their skill by experience rather than by advanced specialized intellectual instruction. 29 CFR § 541.301(d).

Examples Applying the Learned Professional Exemption

The regulations discuss several categories of employees whose duties may or may not qualify for the learned professional exemption. For example, depending on the circumstances and levels of academic study, degrees, and certification, registered or certified medical technologists, registered nurses, dental hygienists, physician assistants, certified public accountants, executive or sous chefs, athletic trainers, and licensed funeral directors and embalmers may meet the duties requirement for the learned professional exemption. 

On the other hand, licensed practical nurses, accounting clerks, bookkeepers, and cooks or chefs without culinary arts degrees, paralegals and legal assistants, generally do not meet the duties requirement for this exemption. 29 CFR § 541.301(e).

Practice of Law or Medicine 

The regs further provide that an employee holding a valid license or certificate permitting the practice of law or medicine is exempt if the employee is actually engaged in such a practice. An employee who holds the requisite academic degree for the general practice of medicine is also exempt if he or she is engaged in an internship or resident program for the profession. 

The salary and salary basis requirements do not apply to bona fide practitioners of law or medicine. 29 CFR § 541.304.

Creative Professional Employee Exemption

To qualify for the creative professional employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $684 per week, and meet all of the following requirements:

  1. The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor (as opposed to routine mental, manual, mechanical or physical work). 

The exemption does not apply to work which can be produced by a person with general manual or intellectual ability and training. 29 CFR § 541.302(a).

Recognized Field of Artistic or Creative Endeavor 

To qualify for the exemption as a creative professional, the employee’s work must be performed “in a recognized field of artistic or creative endeavor.” This includes such fields as music, writing, acting and the graphic arts. 29 CFR § 541.302(b).

Invention, Imagination, Originality or Talent 

The requirement of “invention, imagination, originality or talent” distinguishes the creative professions from work that primarily depends on intelligence, diligence and accuracy. The duties of employees vary widely, and exemption as a creative professional depends on the extent of the invention, imagination, originality or talent exercised by the employee. Determination of exempt creative professional status, therefore, must be made on a case-by-case basis. 

As explained in the regs, this requirement generally is met by actors, musicians, composers, conductors, and soloists; painters who at most are given the subject matter of their painting; cartoonists who are merely told the title or underlying concept of a cartoon and must rely on their own creative ability to express the concept; essayists, novelists, short-story writers and screen-play writers who choose their own subjects and hand in a finished piece of work to their employers (the majority of such persons are, of course, not employees but self-employed); and persons holding the more responsible writing positions in advertising agencies. 

This requirement generally is not met by a person who is employed as a copyist, as an “animator” of motion-picture cartoons, or as a retoucher of photographs, since such work is not properly described as creative in character. 29 CFR § 541.302(c).

Journalists and Reporters

Journalists may satisfy the duties requirements for the creative professional exemption if their primary duty is work requiring invention, imagination, originality or talent (as opposed to work which depends primarily on intelligence, diligence and accuracy)

Employees of newspapers, magazines, television and other media are not exempt creative professionals if they only collect, organize and record information that is routine or already public, or if they do not contribute a unique interpretation or analysis to a news product. 

Thus, for example, newspaper reporters who simply rewrite press releases or who write standard recounts of public information by gathering facts on routine community events are not exempt creative professionals. Reporters also do not qualify as exempt creative professionals if their work product is subject to substantial control by the employer. 

However, journalists may qualify as exempt creative professionals if their primary duty is performing on the air in radio, television or other electronic media; conducting investigative interviews; analyzing or interpreting public events; writing editorials, opinion columns or other commentary; or acting as a narrator or commentator. 29 CFR § 541.302(d).

Teaching Professional Employee Exemption

The professional employee exemption is also available to teachers, if their primary duty is teaching, tutoring, instructing or lecturing in the activity of imparting knowledge, and if they are employed and engaged in this activity as a teacher in an educational establishment. The term “educational establishment” is defined in 29 CFR § 541.204(b).

Exempt teachers include, but are not limited to: Regular academic teachers; teachers of kindergarten or nursery school; teachers of gifted or disabled children; teachers of skilled and semi-skilled trades and occupations; teachers engaged in automobile driving instruction; aircraft flight instructors; home economics teachers; and vocal or instrumental music instructors. 29 CFR § 541.303(b).

Faculty members who are engaged as teachers but also spend a considerable amount of their time in extracurricular activities such as coaching athletic teams or acting as moderators or advisors in such areas as drama, speech, debate or journalism are engaged in teaching. 29 CFR § 541.303(b).

The regs further provide that having an elementary or secondary teacher’s certificate provides a clear means of identifying the individuals contemplated as being within the scope of the exemption for teaching professionals. Teachers who possess a teaching certificate generally qualify for the exemption regardless of the terminology (e.g., permanent, conditional, standard, provisional, temporary, emergency, or unlimited) used by the State to refer to different kinds of certificates. However, private schools and public schools are not uniform in requiring a certificate for employment as an elementary or secondary school teacher, and a teacher’s certificate is not generally necessary for employment in institutions of higher education or other educational establishments. Therefore, a teacher who is not certified may be considered for exemption, provided that such individual is employed as a teacher by the employing school or school system. 29 CFR § 541.303(c)

The salary and salary basis requirements do not apply to bona fide teachers. Having a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge includes, by its very nature, exercising discretion and judgment. 29 CFR § 541.303(d).

Highly Compensated Employees

Highly compensated employees performing office or non-manual work and paid total annual compensation of $107,432 or more (which, as of January 1, 2020, must include at least $684 per week paid on a salary or fee basis) are exempt from the FLSA if they “customarily and regularly” perform at least one of the duties of an exempt executive, administrative or professional employee. 29 CFR § 541.601.

“Customarily and regularly” means a frequency that must be “greater than occasional” but which “may be less than constant.” It includes work “normally and recurrently done every workweek”; it does not include isolated or one-time tasks. 29 CFR § 541.701

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

This article was also published to TimCoffieldAttorney.net.

Tyson Foods v. Bouaphakeo: Representative Proof in Wage Classes

In Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036 (2016), the Supreme Court held that representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact for purposes of class certification. The Court also reaffirmed the long-held FLSA principle that where an employer fails to keep accurate time records, an employee can meet her burden by providing evidence showing hours worked as a matter of just and reasonable inference.

Facts

The plaintiffs worked for Tyson Foods. These employees worked in the kill, cut, and retrim departments of a Tyson’s pork processing plant in Iowa. Their work required them to wear protective gear, but the exact composition of the gear depended on the tasks a worker performed on a given day. Tyson compensated some, but not all, employees for this donning and doffing, and did not record the time each employee spent on those activities. 

The employees filed suit, alleging that the donning and doffing were integral and indispensable to their hazardous work and that Tyson’s policy not to pay for those activities denied them overtime compensation required by the Fair Labor Standards Act of 1938 (FLSA). They also raised a claim under an Iowa state wage law. 

The employees sought certification of their state claims as a class action under Federal Rule of Civil Procedure 23 and certification of their FLSA claims as a “collective action” under 29 U.S.C. § 216. Tyson objected to certification of both classes, arguing that, because of the variance in protective gear each employee wore, the employees’ claims were not sufficiently similar to be resolved on a classwide basis. 

The District Court concluded that common questions, such as whether donning and doffing protective gear was compensable under the FLSA, were susceptible to classwide resolution even if not all of the workers wore the same gear. 

To recover for a violation of the FLSA’s overtime provision, the employees had to show that they each worked more than 40 hours a week, inclusive of the time spent donning and doffing. Because Tyson failed to keep records of this time, the employees primarily relied on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted videotaped observations analyzing how long various donning and doffing activities took, and then averaged the time taken to produce an estimate of 18 minutes a day for the cut and retrim departments and 21.25 minutes for the kill department. These estimates were then added to the timesheets of each employee to ascertain which class members worked more than 40 hours a week and the value of classwide recovery. 

Tyson argued that the varying amounts of time it took employees to don and doff different protective gear made reliance on Mericle’s sample improper, and that its use would lead to recovery for individuals who, in fact, had not worked the requisite 40 hours. The jury awarded the class about $2.9 million in unpaid wages. The Eighth Circuit affirmed the judgment and the award. 136 S.Ct. 1036 at 1039-45.

The Court’s Decision

The Supreme Court affirmed. 

First, the Court observed that before certifying a class under Rule 23(b)(3), a district court must find that “questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed R. Civ. R. 23(b)(3). In Tyson Foods, the parties agreed that the most significant question common to the class was whether donning and doffing protective gear is compensable under the FLSA. Tyson claimed, however, that individual inquiries into the time each worker spent donning and doffing predominated over that common question. The employees argued that individual inquiries were unnecessary because it could be assumed that each employee donned and doffed for the same average time observed in Mericle’s sample. 136 S.Ct. 1036 at 1045-46.

Second, the Court observed that whether and when statistical evidence like an expert sample could be used to establish classwide liability depends on the purpose for which the evidence is being introduced and on “the elements of the underlying cause of action.” 136 S.Ct. at 1046 (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). The Court then reasoned that because a representative sample may be the only feasible way to establish liability, it cannot be deemed improper merely because the claim is brought on behalf of a class. Thus, the employees could show that Mericle’s sample was a permissible means of establishing hours worked in a class action by showing that each class member could have relied on that sample to establish liability had each brought an individual action. 136 S.Ct. at 1046-47.

Third, and perhaps most importantly, the Court discussed how its decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946) showed why the sample was permissible under the circumstances in Tyson Foods

The Court observed that in Mt. Clemens Pottery, where an employer violated its statutory duty to keep proper time records, the Court concluded the employees could meet their burden by proving that they in fact “performed work for which [they were] improperly compensated and … produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id. at 687. In Tyson Foods, similarly, the employees sought to introduce a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records. Had the employees proceeded with individual lawsuits, each employee likely would have had to introduce Mericle’s study to prove the hours he or she worked. The representative evidence was a permissible means of showing individual hours worked. 136 S.Ct. at 1046-47.

Fourth, the Court discussed how its holding was consistent with Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Dukes, as in Tyson Foods, the underlying question was whether a sample could have been used to establish liability in an individual action. In Dukes, the Court pointed out, the employees were not similarly situated, so none of them could have prevailed in an individual suit by relying on depositions detailing the ways in which other employees were discriminated against by their particular store managers. In contrast, the Tyson Foods employees, who worked in the same facility, did similar work, and were paid under the same policy, could have introduced Mericle’s study in a series of individual suits. 136 S.Ct. at 1048.

The Court went on to address the proposed bright-line rules advocated by the parties and their respective amici. The Court determined that the Tyson Foods case was “no occasion” to adopt broad and categorical rules governing the use of representative and statistical evidence in class actions. Rather, the Court observed, the ability of a party to use a representative sample to establish classwide liability depends on the purpose for which the sample is being introduced and on the underlying cause of action. In FLSA actions, the Court emphasized, inferring the hours an employee has worked from a study such as Mericle’s has been permitted by the Court so long as the study is otherwise admissible. 136 S.Ct. at 1049 (citing Mt. Clemens, 328 U.S. at 687).

Finally, the Court addressed Tyson’s argument that the employees were required to demonstrate that uninjured class members would not recover damages awards. The Court declined to address that question, because the damages awarded by the jury had not yet been disbursed and the record did not indicate how it would be disbursed. 136 S.Ct. at 1049-50.

Analysis

In sum, the Tyson Foods Court held that where an employer does not keep accurate time records, the employee can provide a reasonable estimate of time worked for purposes of the FLSA. Thus, representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact for purposes of class certification. 

The case reaffirmed the important FLSA principle of Mt. Clemens Pottery that when an employer fails to keep proper time records, the employees could meet their burden by proving that they in fact “performed work for which [they were] improperly compensated and … produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” 328 U.S. at 687.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

This article was also published to TimCoffieldAttorney.com.

Babb v. Wilkie: Causation in Federal Sector Age Discrimination

In Babb v. Wilkie, Secretary of Veteran Affairs, No. 18-882, ___ U.S. ___ (Apr. 6, 2020), the Supreme Court held that the federal-sector provision of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a(a), demands that personnel actions be untainted by any consideration of age. This means that a federal sector employee can prevail on an age discrimination claim without proving but-for causation. However, the presence or absence of but-for causation is important in determining the available remedies.

Facts

Babb was a federal employee, a pharmacist, at a U.S. Department of Veterans Affairs Medical Center (the “VA”). Babb sued the VA for, inter alia, age discrimination in various adverse personnel actions. The VA offered various alleged nondiscriminatory reasons for the actions. The District Court granted the VA’s summary judgment motion after finding Babb had established a prima facie case, that the VA had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual.

Babb appealed. She argued the District Court’s requirement that age be a but-for cause of a personnel action was inappropriate under the ADEA’s federal-sector provision. Because that section requires most federal-sector “personnel actions” affecting individuals aged 40 and older be made “free from any discrimination based on age,” Babb argued such a personnel action is unlawful if age is a factor in the challenged decision — even if many other factors having nothing to do with age were also factors. Under Babb’s reading of the ADEA, therefore, even if the VA’s proffered reasons in her case were not pretextual, the VA still violated the ADEA if age discrimination played any part at all in the decision. The Eleventh Circuit rejected that argument, citing binding circuit precedent, and Babb appealed again.

The Court’s Decision

The Supreme Court reversed. It held that the plain meaning of § 633a(a) demands that personnel actions be “untainted by any consideration of age.” However, the Court further explained that for an employee to obtain reinstatement, damages, or other relief related to the end result of an employment decision, the employee needed to show but-for causation — that is, that a personnel action would have been different if age had not been taken into account. If age discrimination played a lesser role in the decision, other remedies, like injunctions or other forward-looking relief, may be appropriate.

In short, the VA argued that the ADEA’s federal-sector provision imposes liability only when age is a but-for cause of an employment decision, while Babb argued that it prohibits any adverse consideration of age in the decision-making process. The Court sided with Babb, holding that the plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation. No. 18-882 at 4–7.

First, the Court did a close reading of the statutory language:

All personnel actions affecting employees or applicants … who are at least 40 … shall be made free from any discrimination based on age.

29 U.S.C. § 633a(a)

The Court noted the phrase “free from” means “untainted,” and the word “any” underscores the broad scope of that phrase. The Court had previously held that the normal definition of “discrimination” is “differential treatment.” Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 174 (2005). And “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship[.]’” Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63 (2007). The “shall be made” phrase denotes a duty, “emphasizing the importance of avoiding the taint.” No. 18-882 at 4–5.

The Court then determined that the statutory language indicated age must be a but-for cause of the discrimination alleged, but not of the challenged personnel action.

The Court grounded its reasoning in two aspects of the statute’s syntax. First, it observed that the adjectival phrase “based on age” modifies the noun “discrimination,” not the phrase “personnel actions.” Thus, age must be a but-for cause of discrimination but not the personnel action itself. Second, the adverbial phrase “free from any discrimination” modifies the verb “made” and describes how a personnel action must be “made”: in a way that is not tainted by any differential treatment based on age. Id.

The Court therefore determined the plain meaning of § 633a(a) is that the statute does not require proof of but-for causation — that an employment decision would have turned out differently if age had not been taken into account. Instead, a federal employer violates the statute if it makes age a factor in an employment decision. The Court rejected the VA’s argument, based on the various meanings of particular words, that the statutory text requires more than a federal employer’s “mere consideration” of age in personnel decisions. Id. at 5–7.

Second, the Court rejected the VA’s primary argument, that this “mere consideration” interpretation was undermined by the Court’s decisions interpreting other employment and consumer protection laws as requiring but-for causation. See Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (ADEA’s private-sector provision, 29 U.S.C. §623(a)(1)); University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013) (Title VII’s anti-retaliation provision, 42 U.S.C. §2000e–3(a)); Safeco Ins. Co. of America, 551 U.S. 47 (2007) (Fair Credit Reporting Act, 15 U.S.C. §1681m(a)).

The Court observed that because the language of § 633a(a) (“free from any discrimination based on age”) is markedly different than the language of those other statutes, those cases are perfectly consistent with the Court’s interpretation of the federal-sector ADEA provision. Nor did the traditional rule favoring but-for causation change the result. While § 633a(a) does requires proof of but-for causation, it requires that proof only for the “discrimination,” not for the personnel action. No. 18-882 at 8-11.

Third, the Court observed that it was not “anomalous” to hold the Federal Government to a higher standard than private employers or state and local governments when it comes to age discrimination. This difference is supported by the ADEA’s legislative history. Specifically, when Congress expanded the ADEA’s scope beyond private employers, it added state and local governments to the private-sector provision’s definition of “employers.” But Congress “deliberately prescribed a distinct statutory scheme applicable only to the federal sector,” Lehman v. Nakshian, 453 U.S. 156, 166 (1981), and that federal scheme did away with the private sector provision language. Because the statute’s words are unambiguous, the Court’s job was complete. It would be beyond the Court’s power to second-guess the legislature’s chosen language. No. 18-882 at 11–13.

Finally, after all that, the Court determined that in federal sector ADEA cases but-for causation is nevertheless important in determining the appropriate remedy. The Court concluded for an employee to obtain compensatory damages or other forms of relief related to the end result of an employment decision, the employee must without show that age discrimination was a but-for cause of the employment outcome. The Court observed that this conclusion is supported by basic principles of redress long employed by the Court, as in, for example, Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 103 (1998), and by traditional principles of tort and remedies law. Remedies must be tailored to the injury. Therefore, the Court reasoned, it would not be appropriate to award lost wages or reinstatement to an employee who cannot show age discrimination was a but-for cause of her termination (or other challenged employment decision), since that would mean she would have been terminated even in the absence of any age discrimination. Still, some remedies may be available. Consistent with traditional remedies principles, the Court observed that federal employees who show that age was a but-for cause of differential treatment in an employment decision, but not a but-for cause of the decision itself, can still seek injunctive or other forward-looking relief. No. 18-882 at 13–14.

Analysis

In sum, the Babb Court held that the ADEA’s federal-sector provision demands that personnel actions be untainted by any consideration of age. This means that a federal sector employee can prevail on an age discrimination claim without proving but-for causation. However, the presence or absence of but-for causation is important in determining the available remedies. In the absence of but-for causation, the only available remedies may be injunctive or other forward-looking relief.

This article was also published to TimCoffieldAttorney.com.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

Families First Coronavirus Response Act: COVID-19-Related Paid Employee Leave Rights

Enacted on March 18, 2020, the Families First Coronavirus Response Act (FFCRA) requires small and medium-sized employers to provide employees with paid emergency sick leave and/or paid expanded family and medical leave for specified reasons relating to the COVID-19 pandemic. The FFCRA also provides that covered employers will be reimbursed for complying with these requirements. The provisions will remain in effect through December 31, 2020.

This post will focus on the basic provisions of the FFCRA as they relate to employee rights to COVID-19-related emergency paid sick leave (under the Emergency Paid Sick Leave Act, which is part of FFCRA) and expanded family and medical leave (under the Emergency Family and Medical Leave Expansion Act, an amendment to the FMLA, and also part of the FFCRA). The Department of Labor is also an excellent resource for information about the FFCRA as it relates to both employee paid leave rights and employer paid leave requirements. Here are FFCRA information posters (non-federal employees and federal employees) prepared by DOL for employers to disseminate to employees.

Covered Employers

The FFCRA’s emergency paid sick leave and expanded family and medical leave provisions apply to private employers with fewer than 500 employees. The DOL has indicated that certain provisions may not apply to certain employers with fewer than 50 employees. For example, small businesses with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

The provisions also apply to certain public employers. Most federal government employees are covered by Title II of the Family and Medical Leave Act. Because the FFCRA did not amend Title II of the FMLA, most federal employees are not covered by the FFCRA’s expanded family and medical leave provisions. However, federal employees covered by Title II of the FMLA are covered by the FFCRA’s emergency paid sick leave provisions.

Eligible Employees

As explained below, all employees of covered employers are eligible for two weeks of emergency paid sick time for specified reasons related to COVID-19. Employees employed for at least 30 days are eligible for up to an additional 10 weeks of paid family leave to care for a child under certain circumstances related to COVID-19. The FFCRA also provides some special rules for health care providers and emergency responders. In particular, the law allows employers of health care providers or emergency responders to elect to exclude those employees from eligibility for the leave provided under the FFCRA.

Summary of Emergency Paid Sick Leave Rights

With respect to emergency paid sick leave, the FFCRA generally provides that employees of covered employers are eligible to receive:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s full regular rate of pay where the employee is unable to work because she or he is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

In other words, if an employee becomes quarantined or sick, the employee can receive paid sick leave at her or his full regular rate. If the employee’s child’s school closes because of the pandemic and the employee must take leave to care for the child, the employee can receive paid sick leave at two thirds his or her regular pay rate.

Qualifying Reasons for Emergency Paid Sick Leave

Under the FFCRA, an employee qualifies for emergency paid sick leave if the employee is unable to work or telework due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Duration of Emergency Paid Sick Leave

Under the FFCRA’s emergency paid sick leave provisions, a full-time employee is eligible for two weeks (80 hours) of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

Calculation of Pay During Emergency Paid Sick Leave

The calculation of pay during emergency paid sick leave depends on the reason for the leave. If the employee requires leave because she or he

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19,
  2. has been advised by a health care provider to self-quarantine related to COVID-19, or
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis,

the employee is entitled to pay at either her or his full regular rate or the applicable minimum wage, whichever is higher. This emergency paid leave is capped at a maximum of $511 per day and $5,110 in the aggregate (over a 2-week period).

The rate of emergency paid sick leave is lower if the employee requires leave to care for someone else. If the employee requires leave because she or he

  1. is caring for an individual subject to a Federal, State, or local quarantine order or who has been advised by a health care provider to self-quarantine related to COVID-19,
  2. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19, or
  3. is experiencing any other “substantially-similar condition” specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury,

the employee is entitled to pay at two thirds her or his regular rate or two thirds the applicable minimum wage, whichever is higher. This emergency paid leave is capped at a maximum of $200 per day and $2,000 in the aggregate (over a 2-week period).

Paid sick leave under the FFCRA does not carry over from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment.

Summary of Paid Expanded Family and Medical Leave Rights

In addition, the FFCRA generally provides that employees who have been employed by covered employers for at least 30 days are eligible to receive:

  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where the employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

In short, if the employee’s child’s school or daycare closes because of the pandemic and the employee must take leave to care for the child, the employee is eligible for up to 10 weeks of paid “expanded” FMLA leave at two thirds her or his regular pay rate.

Qualifying Reasons for Paid Expanded Family and Medical Leave

Under the FFCRA, an employee qualifies for expanded family and medical leave only if the employee requires leave to care for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Paid Expanded Family and Medical Leave

In this situation — where an employee requires leave to care for a child whose school or place of care is closed due to COVID-19 — the duration of leave again depends on whether the employee is full-time or part-time. The difference turns on hours typically worked per week.

A full-time employee is eligible for up to a total of 12 weeks of leave (two weeks of emergency paid sick leave, followed by up to 10 weeks of paid expanded family and medical leave) at 40 hours a week. A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that same period.

Calculation of Pay During Paid Expanded Family and Medical Leave

In the expanded family and medical leave scenario — where an employee requires leave to care for a child whose school or place of care is closed due to COVID-19 — employees taking leave are entitled to pay at two thirds their regular rate or two thirds the applicable minimum wage, whichever is higher.

However, this paid leave is capped at a maximum of $200 per day and $12,000 in the aggregate (over a 12-week period). An employee has the option to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this part of the law.

Notice of Need for Leave

As with the FMLA, where an employee’s need for leave under the FFCRA is foreseeable, the employee should provide notice to the employer as soon as is practicable. After the first workday of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

This blog was also published to TimCoffieldAttorney.net.

Genesis Healthcare v. Symczyk: Rule 68 and Collective Actions

In Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66 (2013), the Supreme Court held that a putative Fair Labor Standards Act collective action brought by one employee on behalf of others was no longer justiciable when, as conceded by the employee, her individual claim became moot before others joined the case.

Facts

Symzcyk worked for Genesis Healthcare as a registered nurse. In 2009, Symczyk brought a putative collective action under the FLSA on behalf of herself and “other employees similarly situated.” 29 U.S.C. § 216(b). She alleged Genesis violated the FLSA by automatically deducting 30 minutes of time worked per shift for meal breaks for certain employees, even when the employees performed compensable work during those breaks. Symcyzk, who remained the sole plaintiff throughout the case, sought statutory damages for the alleged violations.

After Symczyk filed suit, but before any other employees joined the suit, the employer sent Symczyk an offer of judgment under Federal Rule of Civil Procedure 68, which Symczyk ignored. The offer had proposed to pay all of her statutory damages, plus costs and reasonable attorney’s fees. The District Court, finding that no one else had joined the case, and that the Rule 68 offer fully satisfied Symczyk’s claim, concluded that Symczyk’s suit was moot. The court therefore dismissed the case for lack of subject-matter jurisdiction.

The Third Circuit reversed, holding that while Symczyk’s individual claim was moot, the collective action on behalf of other similar employees was not. The Third Circuit reasoned that allowing employers to use calculated Rule 68 offers to “pick off” named plaintiff-employees before certification would frustrate the goals of collective actions. The court therefore remanded the case to the trial court, with instructions to allow Symczyk to seek conditional certification of the collective action and move forward with the case on behalf of other employees who might join. See 569 U.S. at 69-71.

The Court’s Decision

The Supreme Court reversed. The Court held that because Symczyk had no “personal interest” in representing other putative, unnamed employees, nor any other kind of continuing interest that would render her suit not moot, the trial court properly determined it lacked subject-matter jurisdiction over the case.

At the outset, the Court declined to decide whether an unaccepted Rule 68 offer that fully satisfies a plaintiff’s individual claim is sufficient to render that claim moot. Symczyk, however, had conceded this point with respect to her claim and did not argue it on appeal. The Court therefore assumed, without deciding, that the employer’s offer to Symczyk mooted her individual claim. 569 U.S. at 72-73.

The Court then determined that “well-settled mootness principles” controlled the outcome of the case. Once Symczyk’s individual claim became moot, the Court determined that the suit became moot because she had no personal interest in representing others in the action. The Court rejected Symczyk’s contrary arguments because they relied on cases that arose in the context of Rule 23 class actions. The Court found those case inapposite, both because Rule 23 actions are “fundamentally different” from FLSA collective actions and because the cases were “inapplicable” to the facts in Symczyk’s case. 569 U.S. at 73-79.

The cases Symczyk rallied behind were Sosna v. Iowa, 419 U.S. 393 (1975) and United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980). Symczyk argued these cases meant she could seek certification of an FLSA collective action after her individual claim became moot. The Court determined Sosna and Geraghty did not support her position. In short, Sosna held that a class action is not rendered moot when the named plaintiff’s individual claim becomes moot after the class has been duly certified. Geraghty extended those principles to denials of class certification motions, and further provided that, where a putative class action would have acquired independent legal status but for the district court’s erroneous denial of class certification, a corrected ruling on appeal “relates back” to the time of the erroneous denial. See 445 U.S. at 404 and n. 11.

At first glance, these cases seemed like they supported Symczyk’s position. The Court observed, however, that Geraghty’s holding was explicitly limited to cases in which the named plaintiff’s claim remains live at the time the district court denies class certification. See 445 U.S. at 407 and n. 11. Symczyk, by contrast, had not yet moved for “conditional certification” when her claim became moot. Nor had the District Court anticipatorily ruled on any such request. Symczyk therefore had no certification decision to which her claim could have related back. More importantly, the Court emphasized that essential to Sosna and Geraghty was the fact that a putative class acquires an “independent legal status” once it is certified under Rule 23. By contrast, under the FLSA, “conditional certification” does not produce a class with an independent legal status, or join additional parties to the action. 569 U.S. at 73-75.

Second, the Court addressed a line of cases, like County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991), holding that an “inherently transitory” class-action claim is not necessarily moot upon the termination of the named plaintiff’s claim. The Court found these cases inapplicable. Symczyk argued that an employer’s use of Rule 68 offers to “pick off” a named plaintiff before the collective-action process is complete renders the action “inherently transitory.” But the Court observed the “inherently transitory” rationale was developed to address circumstances in which the defendant’s challenged conduct was effectively unreviewable because no plaintiff possessed a personal stake in the suit long enough for litigation to run its course. For this reason, the Court observed, the McLaughlin line of cases focused on the fleeting nature of the challenged conduct giving rise to the claim, not on the defendant’s litigation strategy. Unlike a claim for injunctive relief, a damages claim (like the FLSA claims at issue in Smyczk’s case) cannot evade review — the damage has been done, and can be measured and compensated. The Court further pointed out that an offer of full settlement cannot insulate such a claim from review. While dismissing Symzcyk’s case before certification would foreclose the putative other plaintiff-employees of Genesis from vindicating their rights in Symzcyk’s suit, those employees would remain free to do so in their own lawsuits. 569 U.S. at 75-77.

Finally, the Court addressed its decision in Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326 (1980), which Symczyk cited for her argument that the purposes served by the FLSA’s collective-action provisions would be frustrated by defendants’ use of Rule 68 to “pick off” named plaintiffs before the collective-action process has run its course. The Court found Roper did not support this argument. In Roper, the named plaintiffs’ individual claims became moot after the District Court denied their Rule 23 class certification motion and entered judgment in their favor based on defendant’s Rule 68 offer. The Roper Court held that the named plaintiffs could appeal the denial of certification because they possessed an ongoing, personal economic stake in the substantive controversy — namely, to shift a portion of attorney’s fees and expenses to successful class litigants. Symczyk, by contrast, conceded that her employer’s offer provided complete relief, and she asserted no continuing economic interest in shifting attorney’s fees and costs. Moreover, the Roper holding was tied to the unique significance of Rule 23 class certification decisions, distinguishing it from the FLSA collective action context. 569 U.S. at 77-79.

Analysis

In summary, Genesis held that a putative FLSA collective action brought by single employee was no longer justiciable when, as conceded by the employee, her individual claim became moot by an offer of judgment providing complete relief and no other employees had joined the case. The Court, however, declined to decide whether an unaccepted offer of judgment could render a plaintiff’s claim moot. 

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

This blog was also published to TimCoffieldAttorney.com.

FLSA Administrative Employee Exemption: Discretion and Independent Judgment

The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. However, the law contains several exceptions or “exemptions” from these requirements, most of which turn on a combination of the employees’ pay and the nature of employees’ job duties. For example, Section 13(a)(1) of the FLSA, a.k.a. 29 U.S.C. § 213(a)(1), provides an “exemption” from both minimum wage and overtime pay for certain categories of so-called “white collar” employees — namely, employees working as bona fide executive, administrative, professional, or outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain categories of computer employees. 

To qualify for a white collar exemption, employees must be paid on a salary basis at not less than $684 per week (as of January 1, 2020) and have job duties that satisfy certain requirements. Importantly, job titles do not determine whether an employee is exempt from the FLSA. For an employee to be exempt, her actual real-life job duties and salary must meet all the requirements of the FLSA and the Department of Labor’s implementing regulations.

This post will focus on the exemption for administrative employees. The Department of Labor is also an excellent resource for information about the administrative employee exemption. The DOL’s implementing regulations with respect to the administrative employee exemption are generally located at 29 CFR § 541.200-204

Administrative Employee Criteria

To qualify for the administrative employee exemption (and therefore, not be entitled to receive overtime pay under the FLSA), an employee must meet all of the following requirements:

  1. The employee must be compensated on a “salary basis” (as defined in 29 CFR § 541.602) or “fee basis” (as defined in 29 CFR § 541.605) at a rate not less than $684 per week (lower amounts apply for non-federal employees in U.S. territories);
  2. The employee’s “primary duty” must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; 
  3. The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. 

29 CFR § 541.200.

Definition of “Primary Duty”

As used in these regulations, “primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining an employee’s primary duty include, without limitations, the relative importance of any exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 29 CFR § 541.700.

Definition of “Directly Related to Management or General Business Operations” 

To meet the “directly related to management or general business operations” requirement, an employee must perform work directly related to assisting with the running or servicing of the business. This is different from, for example, working on a manufacturing production line or selling a product in a retail or service establishment. 29 CFR § 541.201(a).

As defined in the DOL regulations, work “directly related to management or general business operations” includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities. 29 CFR § 541.201(b)

Work Directly Related to Management or Operations of Customers

It’s worth noting that an employee may qualify for the administrative exemption if her primary duty is performing work directly related to the management or general business operations of the “employer’s customers.” 29 CFR § 541.201(a). This means that an employee who acts as a consultant to her employer’s clients or customers — as tax experts or financial consultants, for example — may qualify for the exemption. 29 CFR § 541.201(c).

Definition of “Discretion and Independent Judgment” 

To qualify for the administrative exemption, an employee’s primary duty must include the exercise of discretion and independent judgment with respect to matters of significance. As defined in the regs, the exercise of “discretion and independent judgment” involves comparing and evaluating possible courses of conduct and acting or making a decision after the various possibilities have been considered. 29 CFR § 541.202(a).

The phrase must be applied to all the facts, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. 29 CFR § 541.202(b)&(c).

In making the “discretion and independent judgment” determination, the regulations provide examples of many factors to consider, including but not limited to: 

  • whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices;
  • whether the employee carries out major assignments in conducting the operations of the business; 
  • whether the employee performs work that affects business operations to a substantial degree; 
  • whether the employee has authority to commit the employer in matters that have significant financial impact;
  • whether the employee has authority to waive or deviate from established policies and procedures without prior approval
  • whether the employee has authority to negotiate and bind the company on significant matters; and
  • other similar factors identified in the regulation. 

29 CFR § 541.202(b).The fact that an employee’s decisions may be revised or reversed after review does not necessarily mean the employee does not exercise discretion and independent judgment. 29 CFR § 541.202(c).

The exercise of discretion and independent judgment must be more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources. It also “does not include clerical or secretarial work, recording or tabulating data, or performing other mechanical, repetitive, recurrent or routine work.” 29 CFR § 541.202(e).

Definition of “Matters of Significance” 

As used in the regulations, the term “matters of significance” refers to the level of importance or consequence of the work performed. 29 CFR § 541.202(a). An employee does not exercise discretion and independent judgment with respect to matters of significance just because the employer will experience financial losses if the employee fails to perform the job properly. 29 CFR § 541.202(f). For example, a messenger who is entrusted with carrying large sums of money does not exercise discretion and independent judgment with respect to matters of significance even though serious consequences may flow from the employee’s neglect. Id. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee’s duties may cause serious financial loss to the employer. Id.

Administrative Employee Examples

The regulations contain many examples and explanations regarding specific categories of employees who typically may or may not qualify for the administrative employee exemption. Those examples and explanations are located at 29 CFR § 541.203.

Educational Establishments

The administrative exemption may also be available to employees who meet the salary basis or fee basis test, or on a salary basis which is “at least equal to the entrance salary for teachers in the same educational establishment,”  and whose primary duty is “performing administrative functions directly related to academic instruction or training in an educational establishment.” 29 CFR § 541.204(a).

The term “educational establishment” means an elementary or secondary school system, an institution of higher education or other educational institution. 29 CFR § 541.204(c).

Academic administrative functions include operations directly in the field of education, and do not include jobs relating to areas outside the educational field. 29 CFR § 541.204(c). Employees engaged in academic administrative functions include: the superintendent or other head of an elementary or secondary school system, and any assistants responsible for administration of such matters as curriculum, quality and methods of instructing, measuring and testing the learning potential and achievement of students, establishing and maintaining academic and grading standards, and other aspects of the teaching program; the principal and any vice-principals responsible for the operation of an elementary or secondary school; department heads in institutions of higher education responsible for the various subject matter departments; academic counselors and other employees with similar responsibilities. 29 CFR § 541.204(c)(1).

These categories of academic employees may qualify for the administrative exemption because having a primary duty of performing administrative functions directly related to academic instruction or training in an educational establishment necessarily involves exercising discretion and independent judgment with respect to matters of significance.

Highly Compensated Employees 

Highly compensated employees performing office or non-manual work and paid total annual compensation of $107,432 or more (which, as of January 1, 2020, must include at least $684 per week paid on a salary or fee basis) are exempt from the FLSA if they “customarily and regularly” perform at least one of the duties of an exempt executive, administrative or professional employee. 29 CFR § 541.601.

The term “customarily and regularly” means a frequency that must be “greater than occasional” but which “may be less than constant.” 29 CFR § 541.701. Tasks or work performed “customarily and regularly” includes work normally and recurrently performed every workweek; it does not include isolated or one-time tasks. Id.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com. 

This blog was also published to TimCoffieldAttorney.net.

Wage Law for Fire Protection and Law Enforcement Personnel

The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. The rights afforded by the FLSA apply to covered employees of public agencies, including most employees working fire protection or law enforcement jobs for state or local governments. However, the FLSA contains some unique provisions that apply only to fire protection and law enforcement personnel. This post summarizes some of those provisions. The US Department of Labor is also an excellent resource for information about the FLSA rights of state and local government employees.

CHARACTERISTICS OF FIRE PROTECTIONS AND LAW ENFORCEMENT PERSONNEL

Under the FLSA, fire protection personnel include firefighters, paramedics, emergency medical technicians, rescue workers, ambulance personnel, or hazardous materials workers who: (1) are trained in fire suppression, have the legal authority and responsibility to engage in fire suppression, and are employed by a fire department of a municipality, county, fire district, or state, and (2) are engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk. 29 U.S.C. § 203(y).

Notably, the FLSA does not place a limit on how much nonexempt work a worker employed in fire protection activities may perform. As long as the employee satisfies the criteria in Section 203(y), she is “employed in fire protection activities” as far as the FLSA is concerned.

Under the FLSA, law enforcement personnel are employees who are (1) empowered by state or local ordinance to enforce laws designed to maintain peace and order, protect life and property, and to prevent and detect crimes; (2) who have the power to arrest; and (3) who have undergone training in law enforcement. 29 C.F.R. § 553.211(a).

Law enforcement personnel may perform some nonexempt work that is not performed as an incident to or in conjunction with their law enforcement activities. But a worker who spends more than 20 percent of the workweek or applicable work period in nonexempt activities is not considered to be an “employee engaged in law enforcement activities” for the purposes of the FLSA. 29 C.F.R. ¶ § 553.212.

Additionally, fire protection and law enforcement employees may at their own option perform special duty work in fire protection and law enforcement for a separate and independent employer without including those wages and hours in regular rate or overtime determinations for the primary public employer. 29 U.S.C. § 207(p)(1).

COMPENSATORY TIME IN LIEU OF CASH OVERTIME

Like other employees of other public agencies, firefighters and police officers may receive a certain amount of “compensatory time” in lieu of cash overtime wages. Compensatory time is paid time off. Under certain circumstances, the FLSA allows public fire departments and police departments to give nonexempt employees who work overtime hours compensatory time off, instead of cash overtime pay. The amount of compensatory time off the employer gives should correspond to the overtime rate — that is, firefighters and police officers must receive at least one and one-half hours of paid time off for each overtime hour worked. 29 U.S.C. § 207(o). The FLSA further provides that fire departments and police departments, like other public agencies, must allow employees to use their compensatory time with a “reasonable period” of time after they make a request, unless doing so would “unduly disrupt” the operations of the agency. 29 U.S.C. §§ 207(o)(5). Generally, this means fire departments and police departments in normal circumstances should allow employees to use compensatory time on the dates they request.

SPECIAL LIMITS ON ACCRUED COMPENSATORY TIME FOR FIREFIGHTERS AND POLICE

Compensatory time can accumulate, similar to vacation time. Importantly, as with other public employees, if firefighters and police officers do not use their accumulated compensatory time, under certain circumstances the FLSA entitles them to receive cash compensation. 29 U.S.C. § 207(o)(3)-(4). The FLSA also places special limits, different from the limits for other public employees, on the amount of compensatory time that fire protection and law enforcement personnel may receive in lieu of cash overtime wages. Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of comp time (representing 320 overtime hours worked). 29 U.S.C. § 207(o)(3)(A). This is different from other public employees, who may accrue up to 240 hours of compensatory time (representing 160 hours of overtime worked). Once a fire protection or law enforcement employee accrues the maximum amount of unused compensatory time hours — 480 — she must be paid cash overtime wages for all additional overtime hours. 29 U.S.C. § 207(o)(3)(A).

Significantly, the Supreme Court has held that the Fair Labor Standards Act does not prohibit public employers from compelling employees to use compensatory time. Christensen v. Harris County, 529 U.S. 576 (2000).

SPECIAL OVERTIME CALCULATION RULES FOR FIREFIGHTERS AND POLICE

The FLSA provides that covered nonexempt employees in most lines of work are entitled to overtime pay (or compensatory time in lieu of overtime pay) for all hours worked in excess of 40 in a 7-day workweek. That is not necessarily the case for firefighters and police officers. Because the work schedules of firefighters and police officers traditionally differ from a standard 40-hour per seven-day workweek, the FLSA provides some special rules for calculating overtime compensation (or compensatory time) for fire protection and law enforcement personnel.

Specifically, fire departments or police departments may establish a work period ranging from 7 to 28 days in which overtime need be paid only after a specified number of hours in each work period. 29 U.S.C. § 207(k). In the case of a 28-day work period, fire protection employees are entitled to overtime pay (or compensatory time) for hours worked in excess of 212 hours during the period, while law enforcement personnel are entitled to overtime pay (or compensatory time) for hours worked in excess of 171 hours during the period. 29 C.F.R. § 553.230(a)-(b).

In the case of fire protection or law enforcement employees who have a work period of at least 7 but less than 28 consecutive days, overtime compensation is required when the ratio of the number of hours worked to the number of days in the work period exceeds the ratio of 212 (or 171) hours to 28 days. 29 C.F.R. § § 553.20129 C.F.R. § 553.230 (conversion table for ratios). For fire protection personnel, that ratio works out to 7.57 hours per day (rounded); for law enforcement personnel, that ratio works out to 6.11 hours per day (rounded).  29 C.F.R. § 553.230(c).

MAXIMUM HOURS BY WORK PERIOD FOR FIRE PROTECTION AND LAW ENFORCEMENT PERSONNEL 

Here is a copy of the maximum hours conversion table, showing the amount of hours fire protection or law enforcement may work during a work period, depending on the length of the work period, above which overtime pay or compensatory time is required:

Work Period (Days) Maximum Hour Standards:
Fire Protection
Maximum Hour Standards:
Law Enforcement
28 212 171
27 204 165
26 197 159
25 189 153
24 182 147
23 174 141
22 167 134
21 159 128
20 151 122
19 144 116
18 136 110
17 129 104
16 121 98
15 114 92
14 106 86
13 98 79
12 91 73
11 83 67
10 76 61
9 68 55
8 61 49
7 53 43

29 C.F.R. § 553.230.

PAYMENT OF ACCRUED COMPENSATORY TIME AT TERMINATION

At the end of a fire protection or law enforcement employee’s employment, she is generally entitled to receive a cash payment for any unused compensatory time. Because rates of pay may vary over the course of employment, the FLSA provides specific instructions for calculating the cash value of unused compensatory time. Specifically, like other public agency employees, at the time of termination, a fire protection or law enforcement employee must be paid the higher of

(A) the average regular rate during her last three years of employment, or

(B) her final regular rate of pay,

for any unused accrued compensatory time remaining when the termination occurs. 29 U.S.C. § 207(o)(4).

EXEMPTION FOR SMALL FIRE AND POLICE DEPARTMENTS

The FLSA also provides an overtime exemption for very small fire departments and police departments. Specifically, any employee who in any workweek is employed by an agency employing fewer than 5 employees in fire protection or law enforcement may be exempt from overtime. 29 U.S.C. § 213(b)(20).

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

This blog was also published to TimCoffieldAttorney.net.

Christensen v. Harris County: Compelled Use of FLSA Compensatory Time

In Christensen v. Harris County, 529 U.S. 576 (2000), the Supreme Court held that the Fair Labor Standards Act does not prohibit public employers from compelling employees to use compensatory time.

Background

The Fair Labor Standards Act allows public employers (including states and their political subdivisions) to compensate employees for overtime work by granting them compensatory time instead of paying them a cash overtime wage. 29 U.S.C. § 207(o). Compensatory time is paid time off. To comply with this part of the FLSA, the public employer must provide the compensatory time at a rate not less than one and one-half hours for each hour of overtime worked. Id. Compensatory time can accumulate, like vacation time. Importantly, if employees do not use their accumulated compensatory time, under certain circumstances the FLSA requires the public employer to pay the employees cash compensation. 29 U.S.C. §§ 207(o)(3)-(4).

Facts

Employees in Harris County accumulated a great volume of unused compensatory time. This caused Harris County to worry that a budget crisis would result if it had to pay its employees for their accrued unused compensatory time. In an effort to avoid that situation, the county adopted a policy requiring its employees to schedule time off. The county’s reasoning was that requiring time off would reduce the amount of accrued compensatory time among its workers, thereby reducing the likelihood of a budget crisis from having to pay for unused compensatory time.

Ed Christensen was a Harris County deputy sheriff. He and a group of fellow deputy sheriffs sued the county, claiming the policy of requiring employees to use their compensatory time violated the FLSA. Christensen argued that the FLSA does not permit an employer to compel an employee to use compensatory time in the absence of an agreement allowing the employer to do so. The District Court ruled for Christensen and entered a declaratory judgment that the county’s policy violated the FLSA. The Fifth Circuit reversed. It held that the FLSA did not address the issue of compelling the use of compensatory time and therefore did not prohibit the county from implementing its policy.

The Court’s Decision

The Supreme Court affirmed, holding that neither the text of the FLSA nor its implementing regulations prohibits a public employer from compelling its employees to use their compensatory time.

First, the Court rejected Christensen’s argument that § 207(o)(5) of the FLSA implicitly prohibits compelled use of compensatory time in the absence of an agreement. That section provides that an employer must grant an employee’s request to use her compensatory time unless doing so would unduly disrupt the employer’s operations. 29 U.S.C. § 207(o)(5). Citing Raleigh & Gaston R. Co. v. Reid, 13 Wall. 269, 270 (1872) for the proposition that when a statute limits a thing to be done in a particular mode, it implicitly disallows any other mode, Christensen argued that because § 207(o)(5) allowed only an employee to require the use of compensatory time, that section implicitly prohibited an employer from requiring the use of compensatory time. Id. at 583-84. The Court disagreed with that conclusion. Instead, it found that the only “negative inference” to be drawn from § 207(o)(5) was that an employer may not deny a request for any reason other than that provided in § 207(o)(5). Id. Thus, the section did not prohibit employers from compelling the use of compensatory time.

The Court went on to explain that the purpose of § 207(o)(5) was to ensure that an employee receive “some timely benefit for overtime work.” Id. at 584. The FLSA’s nearby provisions reflect a similar concern. For example, § 207(o)(3)(A) provides that workers may not accrue more than 240 or 480 hours of compensatory time, depending upon the nature of the job. This provision “helps guarantee that employees only accrue amounts of compensatory time that they can reasonably use.” Christensen at 584. Similarly, the Court observed that § 207(o)(2)(B) conditions an employer’s ability to provide compensatory time (in lieu of paying cash overtime wages) upon the employee not accruing compensatory time in excess of the § 207(o)(3)(A) limits. Thus, these provisions, like § 207(o)(5), reflect a legislative concern that employees receive “some timely benefit in exchange for overtime work.” Christensen at 584.

The Court therefore concluded that the best reading of the FLSA is that it ensures liquidation of compensatory time. The law places restrictions on an employer’s ability to prohibit employees from using their compensatory time. But it says nothing about restricting an employer’s efforts to require employees to use the time. Id. at 585. Because the FLSA text is silent on this issue and because the county’s policy was compatible with § 207(o)(5), the Court held that Christensen could not, as § 216(b) of the FLSA requires, prove that the county violated the FLSA’s overtime provisions.

The Court further noted that two other features of the FLSA supported its reading that the FLSA did not prohibit employers from compelling the use of compensatory time. First, the FLSA allows employers to decrease the number of hours that employees work. Id. at 585 (citing Barrentine v. Arkansas—Best Freight System, Inc., 450 U.S. 728, 739 (1981) (“[T]he FLSA was designed … to ensure that each employee covered by the Act … would be protected from the evil of overwork …”). And second, the FLSA expressly allows employers to cash out accumulated compensatory time by paying the employee her regular hourly wage for each hour accrued. Id. at 585 (citing 29 U.S.C. § 207(o)(3)(B) & 29 CFR § 553.27(a)(1999). Thus, the FLSA allows an employer to require an employee to take time off work, and to use the money it would have paid in wages to cash out accrued compensatory time. Id. at 585. The Court concluded that Harris County’s policy of compelling the use of compensatory time “merely involves doing both of these steps at once.” Id. at 586.

Christensen also argued, unsuccessfully, that employers were prohibited from compelling the use of compensatory time pursuant a Department of Labor opinion letter. In that letter, the DOL concluded that an employer may compel the use of compensatory time only if the employee has agreed in advance to such a practice. Id. at 586-87. The Court observed that the opinion letter was not entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), because interpretations contained in opinion letters — similar to policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron deference. While “persuasive” interpretations in opinion letters are “entitled to respect” under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) the Court concluded DOL’s interpretation was not persuasive. Id. at 587.

While Chevron deference does apply to an agency interpretation contained in a regulation, the regulation at issue, 29 CFR § 553.23(a)(2), provided only that “[t]he agreement or understanding [between the employer and employee] may include other provisions governing the preservation, use, or cashing out of compensatory time so long as these provisions are consistent with [§ 207(o)].” Id.; Christensen at 587-88. The Court concluded that nothing in 29 CFR § 553.23(a)(2) “even arguably” requires that an employer’s compelled use policy must be included in an agreement. Id. 588. Thus, Chevron deference did not apply. Lastly, deference to an agency’s interpretation of its regulation is warranted under Auer v. Robbins, 519 U.S. 452, 461 (1997), only when the regulation’s language is ambiguous. The Court held that the DOL’s regulation was not ambiguous, and therefore the DOL’s interpretation of that regulation was not entitled to Auer deference. Id. at 588.

Analysis

In sum, Christensen held that the FLSA does not prohibit public employers from compelling their employees to use their accrued compensatory time. While this issue is not specifically addressed in the text of the FLSA, the law does not explicitly prohibit this practice, and the conclusion that public employers may compel the use of compensatory time is consistent with other aspects of the FLSA that allow an employer to require employees to take time off from work and to use the money it would have paid in wages to cash out accrued compensatory time.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

This blog was also published to TimCoffieldAttorney.com.

Wage Law Basics for Public Employees

The Fair Labor Standards Act requires covered employers to pay minimum wages and overtime compensation to certain categories of employees. The rights afforded by the FLSA apply to employees in the private sector as well as employees of state and local governments. However, the FLSA contains some unique provisions that apply only to state and local government employers and their employees. This post summarizes some of those provisions. The US Department of Labor is also an excellent resource for information about the FLSA rights of state and local government employees.

STATE AND LOCAL GOVERNMENT EMPLOYER COVERAGE 

The FLSA defines a covered “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency[.]” 29 U.S.C. §§ 203(d). It goes on to define “public agency” as “the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States … a State, or a political subdivision of a State; or any interstate governmental agency. 29 U.S.C. §§ 203(x). The FLSA therefore applies to state and local government employers. Notably, the definition of “public agency” does not extend to private companies that engage in activities often performed by public employees, such as government contractors.

COVERAGE OF STATE AND LOCAL GOVERNMENT EMPLOYEES

The FLSA also makes clear that its rights apply to public agency employees under the law’s “enterprise” coverage provision. 29 U.S.C. § 203(s)(1)(C).

GENERAL REQUIREMENTS 

As with private employers, the FLSA generally requires public agency employers to pay all covered nonexempt employees at least the federal minimum wage, which is currently $7.25 per hour. 29 U.S.C. § 206(a). The FLSA also requires public agency employers to comply with the law’s youth employment standards and recordkeeping requirements. 29 U.S.C. § 206(g) (youth employment standards ) &  29 C.F.R. § 516 (recordkeeping requirements). And as with private employers, the FLSA generally requires public agency employers pay covered nonexempt employees overtime compensation — that is, wages equal to at least one and one-half times the employees’ regular rates of pay for all hours worked over 40 in the workweek. 29 U.S.C. § 207(a).

COMPENSATORY TIME FOR PUBLIC AGENCY EMPLOYEES

Unlike private employers, however, public agencies may have the option of offering covered employees a certain amount of “compensatory time” in lieu of paying them cash overtime wages. Compensatory time is paid time off. Under certain circumstances, the FLSA allows state and local government agencies to give nonexempt employees who work overtime hours compensatory time off, instead of cash overtime pay. The amount of compensatory time off the employer gives should correspond to the overtime rate — that is, public employees must receive at least one and one-half hours of paid time off for each overtime hour worked. 29 U.S.C. § 207(o). The FLSA further provides that a public agency must allow employees to use their compensatory time with a “reasonable period” of time after they make a request, unless doing so would “unduly disrupt” the operations of the agency. 29 U.S.C. §§ 207(o)(5). Generally, this means public agencies in normal circumstances should allow employees to use compensatory time on the dates they request.

ACCRUAL OF COMPENSATORY TIME AND LIMITS

Much like vacation time voluntarily offered by some employers, compensatory time can accumulate. Importantly, if employees do not use their accumulated compensatory time, under certain circumstances the FLSA requires the public agency employer to pay the employees cash compensation. 29 U.S.C. § 207(o)(3)-(4). The FLSA also places limits on the amount of compensatory time that a public agency may give an employee in lieu of paying cash overtime wages. Law enforcement, fire protection, and emergency response personnel and employees engaged in seasonal activities may accrue up to 480 hours of compensatory time (representing 320 overtime hours worked). 29 U.S.C. § 207(o)(3)(A). All other state and local government employees may accrue up to 240 hours (representing 160 overtime hours worked). Id. Once an employee accrues the maximum amount of unused compensatory time hours — either 480 or 240, as the case may be — the public agency employer must pay that employee cash overtime wages for all additional overtime hours. 29 U.S.C. § 207(o)(3)(A).

PAYMENT FOR ACCRUED COMPENSATORY TIME AT TERMINATION

At the end of a public agency employee’s employment, she is generally entitled to receive a cash payment for any unused compensatory time. Because rates of pay may vary over the course of employment, the FLSA provides specific instructions for calculating the cash value of unused compensatory time. Specifically, at the time of termination a public agency employee must be paid the higher of (A) the average regular rate during her last three years of employment, or (B) her final regular rate of pay, for any unused accrued compensatory time remaining when the termination occurs. 29 U.S.C. § 207(o)(4).

POSSIBLE DIFFERENCES IN CALCULATION OF OVERTIME PAY – SPECIAL CASES

For certain categories of public agency employees, the calculation of overtime pay may differ from the general requirements of the FLSA. For example:

  • For employees who solely at their option occasionally or sporadically work on a part-time basis for the same public agency in a different capacity than the one in which they are normally employed, the hours worked in the different employment may be excluded by the public agency in calculating hours for which the employee is entitled to overtime compensation. 29 U.S.C. § 207(p)(2) & 29 CFR § 553.30;
  • For employees who at their option with approval of the agency substitute for another during scheduled work hours in the same work capacity, the hours the employee worked as a substitute may be excluded by the public agency in calculating hours for which the employee is entitled to overtime compensation. 29 U.S.C. § 207(p)(3);
  • Employees who meet exemption requirements for Executive, Administrative, Professional or Outside Sales occupations may be exempt from overtime pay. 29 U.S.C. § 213(a)(1);
  • Hospital or residential care establishments may, with agreement or understanding of employees, adopt a fixed work period of 14 consecutive days and pay overtime after 8 hours in a day or 80 in the work period, whichever is greater. 29 U.S.C. § 207(j);
  • For mass transit employees who spend some time engaged in charter activities, under certain circumstances the employer, in calculating the overtime rate, may exclude the hours the employee was employed in charter activities if (1) the employee’s employment in such activities was pursuant to an agreement or understanding with his employer arrived at before engaging in such employment, and (2) if employment in such activities is not part of such employee’s regular employment. 29 U.S.C. § 207(n)
  • Employees working in separate seasonal amusement or recreational establishments such as swimming pools, parks, etc., may be exempt from overtime pay. 29 U.S.C. § 213(a)(3).

Importantly, some states with concurrent wage laws may not recognize or allow some or all of the above exemptions. Because employers must comply with the most stringent of the state or federal provisions, it is imperative that employers review applicable state laws before applying any of these exclusions or exemptions.

SPECIAL RULES FOR FIREFIGHTERS AND LAW ENFORCEMENT PERSONNEL

The FLSA also provides some special rules for fire protection and law enforcement personnel — public employees whose work schedules traditionally differ from a 40-hour per seven-day workweek.

Under the FLSA, fire protection personnel include firefighters, paramedics, emergency medical technicians, rescue workers, ambulance personnel, or hazardous materials workers who: (1) are trained in fire suppression, have the legal authority and responsibility to engage in fire suppression, and are employed by a fire department of a municipality, county, fire district, or state, and (2) are engaged in the prevention, control, and extinguishment of fires or response to emergency situations where life, property, or the environment is at risk. 29 U.S.C. § 203(y).

Notably, the FLSA does not place a limit on how much nonexempt work a worker employed in fire protection activities may perform. As long as the employee satisfies the criteria in Section 203(y), she is “employed in fire protection activities” as far as the FLSA is concerned.

Under the FLSA, law enforcement personnel are employees who are (1) empowered by state or local ordinance to enforce laws designed to maintain peace and order, protect life and property, and to prevent and detect crimes; (2) who have the power to arrest; and (3) who have undergone training in law enforcement. 29 C.F.R. § 553.211(a).

Law enforcement personnel may perform some nonexempt work that is not performed as an incident to or in conjunction with their law enforcement activities. But a worker who spends more than 20 percent of the workweek or applicable work period in nonexempt activities is not considered to be an “employee engaged in law enforcement activities” for the purposes of the FLSA. 29 C.F.R. § 553.212.

Additionally, fire protection and law enforcement employees may at their own option perform special duty work in fire protection and law enforcement for a separate and independent employer without including the wages and hours in regular rate or overtime determinations for the primary public employer. 29 U.S.C. § 207(p)(1).

For the purposes of calculating overtime worked, the FLSA also allows fire departments and police departments to establish special work periods that differ from the traditional 7-day workweek. Specifically, fire departments or police departments may establish a work period ranging from 7 to 28 days in which overtime need be paid only after a specified number of hours in each work period. 29 U.S.C. § 207(k). In the case of a 28-day work period, fire protection employees are entitled to overtime pay (or compensatory time) for hours worked in excess of 212 hours during the period, while law enforcement personnel are entitled to overtime pay (or compensatory time) for hours worked in excess of 171 hours during the period. 29 C.F.R. § 553.230(a)-(b).

In the case of fire protection or law enforcement employees who have a work period of at least 7 but less than 28 consecutive days, overtime compensation is required when the ratio of the number of hours worked to the number of days in the work period exceeds the ratio of 212 (or 171) hours to 28 days. 29 C.F.R. § § 553.20129 C.F.R. § 553.230 (conversion table for ratios). For fire protection personnel, that ratio works out to 7.57 hours per day (rounded); for law enforcement personnel, that ratio works out to 6.11 hours per day (rounded).  29 C.F.R. § 553.230(c).

The FLSA also provides an overtime exemption for very small fire departments and police departments. Specifically, any employee who in any workweek is employed by an agency employing fewer than 5 employees in fire protection or law enforcement may be exempt from overtime. 29 U.S.C. § 213(b)(20).

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

This blog was also published to TimCoffieldAttorney.net.