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Pocket Guide to the Fair Labor Standards Act

By Cathleen A. Williams and Edmund K. Brehl
Updated by Brian Walter
3rd edition, 2014

$22 each

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This Pocket Guide focuses on the Act's impact in the public sector workplace and explains complicated provisions of the law that have vexed public sector practitioners, like the "salary basis" test and deductions from pay and leave for partial-day absences.

Each chapter tackles a broad topic by providing a detailed discussion of the law's many applications in special workplace environments. For example, the chapter that covers overtime calculation begins by defining regular rate of pay and then considers the payment of bonuses, fluctuating workweeks, and alternative work periods for law enforcement and fire protection employees. Other chapters focus on record keeping requirements, hours of work, and "white collar" exemptions. In each case, detailed footnotes offer an in-depth discussion of the varied applications of the FLSA.

ABOUT THE AUTHORS
Coauthor Edmund "Deak" Brehl served as labor relations counsel for the California Department of Personnel Administration, in Sacramento. The DPA represents state agencies in all aspects of labor law before administrative agencies and in the state and federal courts. Coauthor Cathleen A. Williams is an attorney in private practice in Sacramento. She specializes in FLSA cases on behalf of employees and unions. This edition was updated by Brian Walter, a partner with the law firm of Liebert Cassidy Whitmore, which represents public agency management in all aspects of labor and employment law, including labor relations, civil litigation and education. Walter regularly advises and counsels in all areas of employment and labor law, including the FLSA. He conducts FLSA audits for clients, represents clients in DOL and DLSE audits, and presents FLSA trainings. He is a member of the Editorial Advisory Board for Thompson Publishing Group's Fair Labor Standards Handbook for States, Local Governments and Schools.

TABLE OF CONTENTS

I. Overview1
    A. History of the FLSA in the Public Sector1
    B. The Department of Labor's FLSA Regulations4
        1. DOL regulations5
        2. DOL interpretative bulletins and letter rulings5
    C. State Wage and Hour Law6
II. Exclusions From FLSA Coverage7
    A. Exclusions for Elected Officials, Their Staff, and Certain Employees of Legislative Bodies7
        1. Statutory exclusion7
        2. Criteria for each excluded class8
    B. Independent Contractors9
        1. The DOL's 'totality of circumstances' test9
    C. Trainees 10
    D. Volunteers11
        1. Permissible payments and benefits11
        2. Current employees cannot volunteer to perform the same or similar services13
    E. Total Exemption for Small Fire and Police Departments14
    F. Prison Inmates 14
    G. Case Studies on FLSA Coverage15
III. Overtime Exemptions 17
    A. The White Collar Exemption 17
        1. The salary test 17
        2. The duties test 23
    B. Exemption for Highly Compensated Employees 31
    C. Application of Exemptions to First Responders 32
    D. Computer Employee Exemption 32
    E. Recreational Establishment Exemption 33
    F. Case Studies on Overtime Exemptions 34
IV. The Work Period 36
    A. Definition of Workweek 36
        1. Requirement to designate 36
        2. Requirements regarding change of workweeks 37
    B. The 7(b) Work Period 37
        1. The 26-week/1,040-hour work period 37
        2. The 52-week/2,080-hour work period 38
    C. The Hospital 7(j) Work Period 39
    D. Public Safety 7(k) Work Periods 39
        1. Fire protection activities38
        2. Law enforcement activities 42
        3. Twenty-percent limitation on nonexempt work43
    E. Case Studies on the Work Period 43
V. Hours Worked 45
    A. Distinction Between Paid Leave Time and Actual Hours Worked 45
    B. Volunteer Work Time 46
    C. Recording and Rounding Small Amounts of Time 46
    D. Substitute Work for Another Employee 47
    E. Employees Working in More Than One Position for the Same Employer 48
        1. Definition of 'occasional or sporadic' 48
        2. Definition of work 'in a different capacity' 48
        3. Special rule for law enforcement48
        4. Special rule for teaching activities 49
        5. Special rule for court reporters employed by a public entity 49
    F. Waiting Time 50
    G. On-Call and Stand-By Time50
        1. Factors regarding ability to engage in personal pursuits51
    H. Rest Periods52
    I. Meal Periods 53
        1. Meal periods for public safety personnel on a 7(k) work period53
    J. Sleep Time54
        1. Duty of less than 24 hours54
        2. Duty of 24 hours or more 55
        3. Sleep periods for 7(k) police and fire personnel 55
    K. Pre- and Post-Shift Activities55
        1. Travel to and from work56
    L. Travel Time 57
        1. Travel to and from work 57
        2. Travel during the workday 57
        3. Overnight travel 58
    M. Training Time 58
        1. Definition of voluntary attendance 59
        2. Definition of training directly related to employee's job 59
        3. Training required for certification by a higher agency 59
        4. Independent training 60
        5. Employer-sponsored training and education programs 60
        6. Apprenticeship training programs 60
    N. Work at Home60
        1. Employees who reside on employer premises or work at home60
        2. K9 cases 61
        3. Cleaning and maintenance of motorcycles and trucks 62
    O. Grievance Processing Time62
    P. Early Relief 63
    Q. Off-Duty Special Detail Work 63
    R. Medical Treatment for Employees 64
    S. Case Studies on Hours Worked 64
VI. Compensatory Time Off Under the FLSA 68
    A. Distinction Beween FLSA CTO and Non-FLSA CTO 68
    B. Employer and Employee Must Agree That CTO Compensation Is Permissible 69
        1. Represented employees 69
        2. Unrepresented employees 69
    C. CTO Accruals 69
        1. Public safety activities 70
        2. Emergency response activities 70
        3. Seasonal activities 70
    D. Use of Accumulated FLSA CTO 71
        1. 'Reasonable period' 71
        2. 'Unduly disrupt'71
        3. Forced use of CTO71
        4. No standards for use of non-FLSA CTO 72
    E. Payment for Accumulated FLSA CTO72
    F. Penalties for Violatoin of the FLSA CTO Provision 73
    G. Case Studies on CTO 73
VII. Regular Rate of Pay 74
    A. Calculation of the Regular Rate of Pay 75
        1. The hourly employee 75
        2. Employees paid on a basis other than hourly 75
        3. 7(k) work period employees 76
    B. Fixed Wages for Fluctuating Hours 76
    C. The Regular Rate for Employees at More Than One Rate of Pay76
        1. Weighted average method 77
        2. Rate for the position in which overtime work is performed 77
    D. Payments Excluded From Regular Rate of Pay77
    E. Payments Included in Regular Rate of Pay 79
    F. Timely Payment of Wages79
    G. Case Studies on the Regular Rate of Pay 80
VIII. Minimum Wage 82
    A. Newly Hired Employees Under 20 Years Old 82
IX. Recordkeeping 83
    A. General Recordkeeping Requirements for Employees 83
    B. Records Required for Hospital Employees Working a 7(j) Work Period 85
    C. Records Required for Employees Working a 7(b) Work Period 85
    D. DOL Posting Requirements 86
    E. Preservation of Records 86
X. Remedies and Enforcement 87
    A. Statute of Limitations 87
    B. Damages Available to Employees 87
    C. Immunity From Suits by Private Persons 88
XI. Table of Cases 90

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