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You have recently been employed with a Florida state agency as an assistant in the human resources department. Your boss comes to you and explains that several department directors, who are considered "excluded career service employees," have sent an inter-office memorandum to the governor threatening a class-action lawsuit. The memorandum indicates that the directors have been required to regularly work more than 40 hours a week, and because they are excluded career service employees, they are not subject to receiving overtime. They further indicate that they believe that there is a Florida Administrative Code that speaks to this very issue, which authorizes compensation in the form of compensatory leave (comp time) as opposed to pay if they work more than 40 hours a week. However, they have not been given any compensatory leave for voluminous amounts of time worked over their 40-hour workweek for the last several years.
Your boss then instructs you to research the issue and prepare a research paper addressing the following issues:
1) Are the directors' complaints about not receiving compensatory time valid? Be specific as to why or why not.
2) If the complaints are valid, what Florida Administrative code addresses the issue? Explain in detail how it does or does not apply.
3) What should the agency be doing in the future to comply with the Florida Administrative code?
4) If the directors' complaints are valid, what should the agency do to make things "right" to avoid litigation?
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The law covering exempt salaried in Florida is the FLSA, or Fair Labor Standards Act. The FLSA requires all employers to pay their workers “time-and-a-half” for overtime, or 1.5 times their regular hourly rate for hours over 40 worked in a given week. Under the law, however, some salaried employees as well as wage-earners are entitled to overtime.[k2] Employers are often caught unawares by this fact. The FLSA, however, has created two categories of salaried workers. One group is entitled to overtime (the salaried non-exempt or Career Service (CS) Included, another group (the salaried exempt or Career Service (CS) Excluded) is not entitled to receive overtime pay.The issue is complicated by the fact that some states have passed their own overtime laws. In those cases, a salaried worker who would not be entitled to overtime under federal law may be entitled under state law.
Several department [k3] directors of one Florida State Agency, who are considered "excluded career service employees," have sent an inter-office memorandum to the governor threatening a class-action lawsuit. The memorandum indicates that the directors have been required to regularly work more than 40 hours a week, and because they are excluded career service employees, they are not subject to receiving overtime. Lawsuits and judgments pertaining to the Fair Labor Standards Act overtime exemptions are approaching a half billion dollars. Many managers do not understand the exempt rules and regulations. To that end, more than 100 federal court cases were examined and governing principle identified and recommended for each exempt classification: executive/managerial, administrative, professional, computer employees, and outside sales. Florida Administrative Code and Florida Administrative Register with 60L-34.0044 Policy number HR-08-124 establish policies and procedures for delegated authority relating to hours of work, overtime, regular compensatory leave credits, special compensatory leave credits and Fair Labor Standards Act (FLSA) compensatory leave credits.[k4]
Florida Administrative Code 60L-34.0044 stated that “ Upon prior notice, an agency may compel the use of all or part of an employee’s accumulated special compensatory leave credits based on agency needs, provided such usage requirement is in accordance with any collective bargaining agreement provisions. An agency may also require an employee to use accumulated special compensatory leave credits prior to approving an employee’s request to use other types of approved leave, with the exception of sick leave, administrative leave, FLSA compensatory leave and the personal holiday.” For this purpose Department of Management Services’ (DMS/department) for employee in Career Service (CS) Excluded establish Offsetting Extra Hours Worked policy number HR -08-124 “When feasible, extra hours worked in a workday should be offset by giving the employee equal time off during the same biweekly work period (over 80 hours) in which the extra hours were worked. If an employee works more than his regular scheduled hours in a biweekly work period (over 80 hours), and takes approved leave during the same period, leave credits will only be charged in the amount necessary to bring the employee’s work period total to 80 hours.”[k5]
State agenciesare allowed to use compensatory time off if specific conditions are met.
The FLSA permits certain state and local government employers to grant comp time off at a rate of not less than one and one-half hours for each hour of overtime worked instead of paying overtime cash compensation.
However, this practice is permitted only when the public employer and employee agree on it before the work is performed, either through individual or collective bargaining agreements.
Even then, additional restrictions apply regarding the amount of comp time that may be accrued and when it may be used.
The premise behind the overtime requirement is simple.[k6]
The FLSA requires that overtime must be paid for all hours worked over 40 in a single workweek.
Since overtime is calculated based on the amount of time a nonexempt employee works in a single workweek, it cannot be averaged over two or more weeks.
Thus, you cannot allow an employee who works 45 hours in one week to be paid for only 40 hours, even if your intent would be to give him 7.5 hours (5 hours times 1.5 overtime rate) of comp time off in another week.
The exception to the rule
There is one circumstance when you may be able to provide comp time to nonexempt employees.
According to the U.S. Department of Labor Field Operations Handbook, if a nonexempt employee’s pay period is more than a week, it could be possible for private sector employers to provide the equivalent of comp time off to offset any overtime worked. This could happen only as long as comp time is taken within the same pay period that the overtime hours are earned.
So, for example, in a two-week, 80-hour pay period, if a nonexempt employee works 45 hours in the first week, he should work only 32.5 hours in the second week.
That would mean taking 7.5 hours as paid time off.
The 7.5 hours would represent the five hours of overtime worked in the first week times 1.5 (the overtime rate).
As a practical matter, the employee receives overtime for the extra five hours worked in the first week because he is still being paid for 80 hours although he has worked only 72.5 in the two-week period.
However, the nonexempt employee should not be allowed to accrue the paid time off for use in another pay period since this practice could violate the FLSA.
Remember, too, if the employee is paid on a weekly basis, you cannot use this method.
Make no mistake, though, the use of time off to offset the overtime hours does not mean you are not paying the employee overtime.
Rather, if you use the above calculation, you are paying overtime to the nonexempt employee and simply allowing time off to maintain the employee’s regular pay for the two-week pay period.[k7]
Overtime Pay - Wage and Hour Division (WHD) - U.S. Department of Labor. (n.d.). Retrieved April 1, 2015, from http://www.dol.gov/whd/overtime_pay.htm
(n.d.). Retrieved April 1, 2015, from https://www.flrules.org/gateway/ruleno.asp?id=60L-34.0044&Section=0
(n.d.). Retrieved April 1, 2015, from http://go.galegroup.com.db24.linccweb.org/ps/i.do?&id=GALE|A275312099&v=2.1&u=lincclin_spjc&it=r&p=AONE&sw=w&authCount=1
[k1]Abstracts get their own page. Use same size font for heading
[k2]Please use two spaces after all periods, this is per APA.
[k3]Indent all new paragraphs
[k5]Where is your APA cite for this factual statement(s). Remember, per APA, all factual statements need an in-text citation. Please refer to APA help links for more information.
[k6]Short paragraphs make the paper read very choppy
[k7]All sentences need to flow, this is difficult to read
[k8]These get their own page