To: Heads of State Agencies and Human Resource Directors
Subject: Fair Labor Standards Act
Issue Date: June 30, 1994
Recently it has come to our attention that one of our state agencies was found to be in violation of the Fair Labor Standards Act. Uncompensated overtime was found to be slightly in excess of $181,000. For the violation, in addition to being required to pay this uncompensated overtime, a penalty of $41,112 was assessed by the United States Department of Labor. That is, the cost of being in violation of the Fair Labor Standards Act is now not only to pay that which is owed, but also to pay an additional penalty where warranted. Because the state has been judged in violation and penalized once, we suspect that any future violations by this state would result in greater penalties, since the state is a single employer.
We wish to remind you that it is the agency's responsibility to review those duties actually being performed by employees to determine which positions are exempt and which are non-exempt under the Fair Labor Standards Act guidelines. You should not use the GS 12 and MS 57 references in the Civil Service overtime rules to make these determinations. These are cut off points for determining exempt/non-exempt status under Civil Service Rules only. They are not designed to identify exempt and non-exempt status under FLSA. For those jobs below GS 12 and MS 57, the Civil Service cut off rates can be a relief to the burden of FLSA status determination if you limit your options to compensation at the time and one-half rate of pay or time and one-half compensatory leave.
However, you will have to make an FLSA determination in every case for those jobs above GS 11 and MS 56 in order to comply with both FLSA and Civil Service Rules. Because, for these categories, overtime payments at the time and one- half rate for exempt (FLSA) employees would be a violation of Civil Service Rules and payment at the straight time rate for non-exempt employees would be a violation of FLSA.
In accordance with Civil Service Rule 6.26, positions above GS 11 and MS 56 that are determined to be non-exempt (FLSA) may be paid at the time and one- half rate where required without requesting prior approval from the Civil Service Director.
Please be advised again that you, not Civil Service, are responsible for determining whether the work performed by your employees is exempt or non- exempt under FLSA. This means that you, not Civil Service, will be paying all costs resulting from violations.
If you have any questions regarding the federal regulations, please contact the U.S. Department of Labor, Employment Standards Administration, Wage and Hour Division.
If you have any questions pertaining to the Civil Service overtime rules, please call the Personnel Management Division at (504) 342-8274 (LINC) 421- 8274.
Sincerely,
Herbert L. Sumrall
Director