Is following the law important?

It is my choice to attend city council meetings. I have been doing that for a very long time. I like to hear things first hand. I try to keep up with what is going on and be informed. Because of this, I hear things that sometimes cause red flags to go up. Other times, something might be said that hits home with me for various reasons. The latter happened at a council meeting recently, hence the reason for this writing.

In the past I have worked at several different companies in several different positions. One of those was a business office manager where among other things I was in charge of human resources. In that capacity I was required to stay current on federal employment law to keep the company in compliance legally.

I have one of those minds that traps things when I read them or hear them and can sometimes recall them. In the September called city council meeting to approve the budget, it was stated that all public works full time employees were salaried and would not receive compensatory (comp) time any longer which would save the city a lot of money and be more efficient. Steven Farmer was the only councilperson to vote against approving the budget. A red flag immediately went up with me. I will explain why.

When my husband, Brian, worked for the city several years ago, I discovered that he and all other employees were receiving their comp time at straight time, not time and a half. I knew this was not correct according to federal law, so I asked Brian to let his supervisor know that this needed to be corrected. He sent a message back that the city knew what they were doing and for me to stay out of it. I tried several times to get this corrected to no avail. I was trying to get this corrected quietly but that could not happen with that attitude.

I called the Labor Board and asked for the information I needed. The representative told me that I was correct. He said the city could award comp time instead of paying the employee, but it must be done at time and a half. For instance, if Brian or any other city employee worked one hour overtime, they must be given one hour and thirty minutes comp time. He sent me the info and I addressed the city council at the next meeting.

One lone council person, Walter McKee, asked to borrow the literature I had been given, and assured me that the comp time would be corrected if the city was in the wrong. Nevertheless, all city employees comp time was re-calculated the next day for the previous 6 months and corrected. I am so thankful that Walter McKee did the right thing and made sure the city no longer broke the federal employment law. I was very disappointed that he was the only council member that offered to help.

Now, back to the present. I heard the statement that the full time public works employees were no longer being paid comp time for hours worked over 40 hours per week. I decided to research the law just in case something had changed since I was a business office manager. I can be wrong many times just like other people.

Federal and state laws require most employers to pay overtime at time and a half for all hours worked over 40 per week. But there are exceptions so not all employees are entitled to overtime. Employees who are eligible for overtime are called “nonexempt” employees and those who are not eligible for overtime are called “exempt” employees. When I called the Department of Labor this week, I was told that the municipalities must follow the law like all other companies.

Here is what I found on the Department of Labor website:

The Federal Labor Standards Act (FLSA) requires that most employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempt certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. In order for an exemption to apply, an employee’s specific job duties and salary must meet all the requirements of the Department’s regulations.

Executive Exemption
To qualify for the executive employee exemption, all of the following tests must be met:
* The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 per week;
* The employee’s primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
* The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
* The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

Administrative Exemptions
To qualify for the administrative employee exemption, all of the following tests must be met:
* The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
* 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; and
* The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

Professional Exemption
To qualify for the learned professional employee exemption, all of the following tests must be met:
* The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
* The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
* The advanced knowledge must be in a field of science or learning; and
* The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

To qualify for the creative professional employee exemption, all of the following tests must be met:
* The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
* 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.

Computer Employee Exemption
To qualify for the computer employee exemption, the following tests must be met:
* The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
* The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
* The employee’s primary duty must consist of:
1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
2) The design, development, documentation, analysis, creation, testing or modification of computer
systems or programs, including prototypes, based on and related to user or system design specifications;
3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
4) A combination of the aforementioned duties, the performance of which requires the same level of skills.

Outside Sales Exemption
To qualify for the outside sales employee exemption, all of the following tests must be met:
* The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
* The employee must be customarily and regularly engaged away from the employer’s place or places of business.

Highly Compensated Employees
Highly compensated employees performing office or non-manual work and paid total annual compensation of $100,000 or more (which must include at least $455 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 identified in the standard tests for exemption.

Blue Collar Workers
The exemptions provided by FLSA Section 13(a)(1) apply only to “white collar” employees who meet the salary and duties tests set forth in the Part 541 regulations. The exemptions do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill and energy. FLSA-covered, non-management employees in production, maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers are entitled to minimum wage and overtime premium pay under the FLSA, and are not exempt under the Part 541 regulations no matter how highly paid they might be.

Police, Fire Fighters, Paramedics & Other First Responders
The exemptions also do not apply to police officers, detectives, deputy sheriffs, state troopers, highway patrol officers, investigators, inspectors, correctional officers, parole or probation officers, park rangers, fire fighters, paramedics, emergency medical technicians, ambulance personnel, rescue workers, hazardous materials workers and similar employees, regardless of rank or pay level, who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; pursuing, restraining and apprehending suspects; detaining or supervising suspected and convicted criminals, including those on probation or parole; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; or other similar work.

I am not an attorney so I cannot say for absolute certainty that the city is violating federal law by changing our public works employees’ status from “non-exempt” to “exempt”. But, I can research and read what the law says and ascertain IN MY OPINION that is exactly what they have done. I can call the Labor Board like I did to get the information I need. Anyone, even a councilperson or a department head can do that too. I also think that something of this magnitude should have been approved by the city council before implimentation.

I hope that more people would attend the council meetings and get involved. I hope the City of Italy is not breaking the law, especially federal law by what they have done. I hope the City of Italy consulted their attorney to determine what they planned to do was legal. I hope those in power (our city council) did not blindly go along with this without checking it out first. I hope this kind of good old boy system is not alive and well in Italy, Texas. I hope a lot of things, but the biggest hope I have is this. If the City finds out that they are breaking the law, they will immediately do whatever they have to do to fix this and immediately deal with the employees that put this in place to put our city in legal jeopardy.

If I am wrong and the city can legally change the employee’s status as they did and not pay them the comp time they have earned, I will apologize openly to all involved. If not, I think the council should correct this and give all of us that open apology and not make mistakes like this again that are preventable. The end for now.