California Public Employee Relations

Pocket Guide to the Fair Labor Standards Act

By Cathleen A. Williams and Edmund K. Brehl
Updated by Brian Walter
2nd edition, 2009

$16 each

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Pocket Guide to the Fair Labor Standards Act (Updates and Corrections) PDF

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.

The 2009 second edition includes the Department of Labor's significant changes to over time exemption regulations, addresses common issues regarding hours worked by public employees, and discusses recent legal developments in compensatory time off.

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.

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.


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. Trainees5
    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 Inmates15
    G. Case Studies on FLSA Coverage15
III. Overtime Exemptions16
    A. The White Collar Exemption16
        1. The salary test16
    B. Exemption for Highly Compensated Employees30
    C. Application of Exemptions to First Responders31
    D. Computer Employee Exemption31
    E. Recreational Establishment Exemption32
    F. Case Studies on Overtime Exemptions33
IV. The Work Period34
    A. Definition of Workweek34
        1. Requirement to designate34
        2. Requirements regarding change of workweeks35
    B. The 7(b) Work Period35
        1. The 26-week/1,040-hour work period35
        2. The 52-week/2,080-hour work period36
    C. The Hospital 7(j) Work Period37
    D. Public Safety 7(k) Work Periods37
        1. Fire protection activities38
        2. Law enforcement activities41
        3. Twenty-percent limitation on nonexempt work43
V. Hours Worked44
    A. Distinction Between Paid Leave Time and Actual Hours Worked44
    B. Volunteer Work Time45
    C. Recording and Rounding Small Amounts of Time45
    D. Substitute Work for Another Employee46
    E. Employees Working in More Than One Position for the Same Employer47
        1. Definition of 'occasional or sporadic'47
        2. Definition of work 'in a different capacity'47
        3. Special rule for law enforcement48
        4. Special rule for teaching activities48
        5. Special rule for court reporters employed by a public entity48
    F. Waiting Time49
    G.. On-Call and Stand-By Time50
        1. Factors regarding ability to engage in personal pursuits51
    H. Rest Periods52
    I. Meal Periods52
        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 more54
        3. Sleep periods for 7(k) police and fire personnel54
    K. Pre- and Post-Shift Activities55
    L. Travel Time56
        1. Travel to and from work56
        2. Travel during the workday56
        3. Overnight travel57
    M. Training Time57
        1. Definition of voluntary attendance58
        2. Definition of training directly related to employee's job58
        3. Training required for certification by a higher agency58
        4. Independent training59
        5. Employer-sponsored training and education programs59
        6. Apprenticeship training programs59
    N. Work at Home60
        1. Employees who reside on employer premises or work at home60
        2. K9 cases60
        3. Cleaning and maintenance of motorcycles and trucks61
    O. Grievance Processing Time62
    P. Early Relief62
    Q. Off-Duty Special Detail Work62
    R. Medical Treatment for Employees63
    S. Case Studies on Hours Worked63
VI. Compensatory Time Off Under the FLSA67
    A. Distinction Beween FLSA CTO and Non-FLSA CTO67
    B. Employer and Employee Must Agree That CTO Compensation Is Permissible68
        1. Represented employees68
        2. Unrepresented employees68
    C. CTO Accruals68
        1. Public safety activities69
        2. Emergency response activities69
        3. Seasonal activities69
    D. Use of Accumulated FLSA CTO70
        1. 'Reasonable period'70
        2. 'Unduly disrupt'71
        3. Forced use of CTO71
        4. No standards for use of non-FLSA CTO71
    E. Payment for Accumulated FLSA CTO72
    F. Penalties for Violatoin of the FLSA CTO Provision72
    G.. Case Studies on CTO72
VII. Regular Rate of Pay73
    A. Calculation of the Regular Rate of Pay74
        1. The hourly employee74
        2. Employees paid on a basis other than hourly74
        3. 7(k) work period employees75
    B. Fixed Wages for Fluctuating Hours75
    C. The Regular Rate for Employees at More Than One Rate of Pay76
        1. Weighted average method76
        2. Rate for the position in which overtime work is performed76
    D. Payments Excluded From Regular Rate of Pay77
    E. Payments Included in Regular Rate of Pay78
    F. Timely Payment of Wages79
    G. Case Studies on the Regular Rate of Pay79
VIII. Minimum Wage81
    A. Newly Hired Employees Under 20 Years Old81
IX. Recordkeeping82
    A. General Recordkeeping Requirements for Employees82
    B. Records Required for Hospital Employees Working a 7(j) Work Period84
    C. Records Required for Employees Working a 7(b) Work Period84
    D. DOL Posting Requirements85
    E. Preservation of Records85
X. Remedies and Enforcement86
    A. Statute of Limitations86
    B. Damages Available to Employees86
    C. Immunity From Suits by Private Persons87


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