There are many complex issues that can arise under
the FLSA, but the most common are whether an
employee is exempt from coverage, either in part or
in whole, and whether the employee's activities
constitute work for purposes of determining whether
the employee is entitled to overtime.
There are a number of special rules that apply in the
public sector because the law does apply to
employees in local government and other local public
agencies, including police and fire departments.
Some of these issues are discussed below.
the FLSA, but the most common are whether an
employee is exempt from coverage, either in part or
in whole, and whether the employee's activities
constitute work for purposes of determining whether
the employee is entitled to overtime.
There are a number of special rules that apply in the
public sector because the law does apply to
employees in local government and other local public
agencies, including police and fire departments.
Some of these issues are discussed below.
There are three basic areas of exemption under the FLSA: the executive, administrative and
professional exemptions. The Department of Labor recently changed the regulations on these
exemptions and there is a lot of confusion about how these changes will affect the FLSA. Keep
in mind, if you are an exempt employee, you are not entitled to minimum wage and overtime. If
you are non-exempt, then you have these benefits. For most employees, the issue is not
whether you get minimum wage, it is whether you are entitled to overtime. There are other
exemptions, including one for computer employees, but the following are the most important.
Executive Exemption
To qualify for the executive employee exemption, all of the following tests must be met:
1. The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than
$455 per week;
2. The employee’s primary duty must be managing the enterprise, or managing a customarily recognized
department or subdivision of the enterprise;
3. The employee must customarily and regularly direct the work of at least two or more other full-time employees or
their equivalent; and
4. 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 Exemption
To qualify for the administrative employee exemption, all of the following tests must be met:
1. 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;
2. 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
3. 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:
1. 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;
2. 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;
3. The advanced knowledge must be in a field of science or learning; and
4. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual
instruction.
One of the biggest issues that arises under the FLSA here is whether the employee is actually paid on a
salary basis. If the employee is really paid hourly, the employee generally cannot be exempt. In
addition, just because an employee is paid a salary does not mean the employee is exempt--all of the
other factors for exemption must also be met.
professional exemptions. The Department of Labor recently changed the regulations on these
exemptions and there is a lot of confusion about how these changes will affect the FLSA. Keep
in mind, if you are an exempt employee, you are not entitled to minimum wage and overtime. If
you are non-exempt, then you have these benefits. For most employees, the issue is not
whether you get minimum wage, it is whether you are entitled to overtime. There are other
exemptions, including one for computer employees, but the following are the most important.
Executive Exemption
To qualify for the executive employee exemption, all of the following tests must be met:
1. The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than
$455 per week;
2. The employee’s primary duty must be managing the enterprise, or managing a customarily recognized
department or subdivision of the enterprise;
3. The employee must customarily and regularly direct the work of at least two or more other full-time employees or
their equivalent; and
4. 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 Exemption
To qualify for the administrative employee exemption, all of the following tests must be met:
1. 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;
2. 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
3. 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:
1. 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;
2. 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;
3. The advanced knowledge must be in a field of science or learning; and
4. The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual
instruction.
One of the biggest issues that arises under the FLSA here is whether the employee is actually paid on a
salary basis. If the employee is really paid hourly, the employee generally cannot be exempt. In
addition, just because an employee is paid a salary does not mean the employee is exempt--all of the
other factors for exemption must also be met.
The issue of what hours count toward determining if overtime has been earned can also be quite
complicated. Just a few troublesome areas will be discussed here:
1. Lunch breaks: does the employee have to perform duties, like work at her desk, take phone calls,
attend meetings over lunch? The bottom line test often is whether the time is principally for the benefit
of the employer or the employee.
2. On-call time: many employees have to be on call, including police, fire, public works and emergency
medical personnel. If the on-call time is too restricted, then it might actually be work time. For example,
if the employee has to be able to report within 10 minutes, cannot refuse to report without discipline and
has to stay within range of a beeper, then the time might actually be considered work time and count
towards determining overtime.
3. Preliminary and postliminary activities: Many employees have to perform some activities to get ready
to start work and at the end of the day when leaving work. Under the Portal to Portal Act, many of these
activities are not considered to be work and are not compensable. For example, time spent walking
from a parking lot to a work station is not compensable, and often, the time to change into work clothes
at a plant might not be compensable. However, being at roll call to get tools or instructions for the day
is going to be compensable.
4. Travel time: this is a very confusing area under the law and the result can be based upon whether
travel is local or out of town, and whether during normal working hours or not. Here is some guidance
on this topic.
complicated. Just a few troublesome areas will be discussed here:
1. Lunch breaks: does the employee have to perform duties, like work at her desk, take phone calls,
attend meetings over lunch? The bottom line test often is whether the time is principally for the benefit
of the employer or the employee.
2. On-call time: many employees have to be on call, including police, fire, public works and emergency
medical personnel. If the on-call time is too restricted, then it might actually be work time. For example,
if the employee has to be able to report within 10 minutes, cannot refuse to report without discipline and
has to stay within range of a beeper, then the time might actually be considered work time and count
towards determining overtime.
3. Preliminary and postliminary activities: Many employees have to perform some activities to get ready
to start work and at the end of the day when leaving work. Under the Portal to Portal Act, many of these
activities are not considered to be work and are not compensable. For example, time spent walking
from a parking lot to a work station is not compensable, and often, the time to change into work clothes
at a plant might not be compensable. However, being at roll call to get tools or instructions for the day
is going to be compensable.
4. Travel time: this is a very confusing area under the law and the result can be based upon whether
travel is local or out of town, and whether during normal working hours or not. Here is some guidance
on this topic.
Under the so-called 207(k) partial exemption to the FLSA, public
police and fire employees are not entitled to overtime simply by
working more than 40 hours in a work week; instead police can
be worked up to 171 hours in a 28 day period and fire personnel
can be worked up to 212 hours in a 28 day period. For fire, this
means the equivalent of a 53 hour work week.
The issue of whether paramedics can be worked more than 40
hours a week without overtime pay has been frequently
litigated. To help clarify the issue, Congress enacted a
definition of fire protection activities in 1999 (203(y)):
`Employee in fire protection activities' means an employee,
including a firefighter, paramedic, emergency medical
technician, rescue worker, ambulance personnel, or hazardous
materials worker, who is trained in fire suppression, has the
legal authority and responsibility to engage in fire suppression,
and is employed by a fire department of a municipality, county,
fire district, or State, and is engaged in the prevention, control,
and extinguishment of fires or response to emergency medical
situations where life, property, or the environment is at risk.
Thus, to qualify for §7(k) pay as a fire protection employee under
this statutory definition, an employee must (a) work for a
(government) fire department, (b) be trained in fire suppression,
(c) have the legal authority to fight fires, (d) have the
responsibility to fight fires, (e) and either actually engage in fire
suppression work of the type defined or non-fire related
emergency responses.
The bottom line is that many paramedics have been denied their
right to overtime because they have been treated as firefighters
even if they are not employed with a municipal fire department
and not really trained to fight fires. If this has happened to you,
your rights have likely been violated.
In recent amendments to the white collar exemption regulations,
the DOL made it clear that first responders should not be
considered exempt as professionals or for some other reason if
they are actually on the line doing their jobs even if they have
an official title. See this link on this important topic.
police and fire employees are not entitled to overtime simply by
working more than 40 hours in a work week; instead police can
be worked up to 171 hours in a 28 day period and fire personnel
can be worked up to 212 hours in a 28 day period. For fire, this
means the equivalent of a 53 hour work week.
The issue of whether paramedics can be worked more than 40
hours a week without overtime pay has been frequently
litigated. To help clarify the issue, Congress enacted a
definition of fire protection activities in 1999 (203(y)):
`Employee in fire protection activities' means an employee,
including a firefighter, paramedic, emergency medical
technician, rescue worker, ambulance personnel, or hazardous
materials worker, who is trained in fire suppression, has the
legal authority and responsibility to engage in fire suppression,
and is employed by a fire department of a municipality, county,
fire district, or State, and is engaged in the prevention, control,
and extinguishment of fires or response to emergency medical
situations where life, property, or the environment is at risk.
Thus, to qualify for §7(k) pay as a fire protection employee under
this statutory definition, an employee must (a) work for a
(government) fire department, (b) be trained in fire suppression,
(c) have the legal authority to fight fires, (d) have the
responsibility to fight fires, (e) and either actually engage in fire
suppression work of the type defined or non-fire related
emergency responses.
The bottom line is that many paramedics have been denied their
right to overtime because they have been treated as firefighters
even if they are not employed with a municipal fire department
and not really trained to fight fires. If this has happened to you,
your rights have likely been violated.
In recent amendments to the white collar exemption regulations,
the DOL made it clear that first responders should not be
considered exempt as professionals or for some other reason if
they are actually on the line doing their jobs even if they have
an official title. See this link on this important topic.
The FLSA provides powerful
remedies if your right to
overtime has been violated.
Employees can get two to three
years back pay and that amount
can be liquidated--that is,
doubled. A successful plaintiff
also gets his attorneys' fees
paid by the employer.
The law also allows "collective
actions" so that employees can
join together in a lawsuit. The
law prohibits employers from
retaliating against employees
who exercise their rights
remedies if your right to
overtime has been violated.
Employees can get two to three
years back pay and that amount
can be liquidated--that is,
doubled. A successful plaintiff
also gets his attorneys' fees
paid by the employer.
The law also allows "collective
actions" so that employees can
join together in a lawsuit. The
law prohibits employers from
retaliating against employees
who exercise their rights
| MICHAEL M. SHULTZ In Johnson and Douglas Counties Call us 913-385-9955 866-385-9955 toll free email Mike |
| Kansas employment attorneys representing Kansas employees in wage and hour disputes, minimum wage, overtime and other salary disputes. Working with clients throughout Kansas, including Wichita, Topeka, Kansas City, Kansas, Lawrence, Johnson County, Sedgwick County, Shawnee County and Douglas County. |
Michael M. Shultz a Kansas Wage and Overtime Lawyer
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| KANSAS OVERTIME LAW Michael M. Shultz 913-385-9955 866-385-9955 toll free |
| FLSA ISSUES |
| Exemptions under the FLSA |
| Hours Worked |
| Paramedics |
| Remedies |
One very important issue under
the FLSA is whether an
employee is really an employee
or an independent contractor.
Kansas employees need to
understand the difference as it
has a big effect on the right to
overtime pay. Click to learn
more.
the FLSA is whether an
employee is really an employee
or an independent contractor.
Kansas employees need to
understand the difference as it
has a big effect on the right to
overtime pay. Click to learn
more.
| INDEPENDENT CONTRACTORS |
| Frequently Asked Questions |