- How long must a local government employer make light duty available to a pregnant employee?
In general, an employer is not required to provide a light duty assignment for pregnant employees. However, because of the federal Pregnancy Discrimination Act (PDA) and our state anti-discrimination law (see WAC 162-30-020), an employer may not treat pregnant employees any differently than it treats other employees with a non-work related injury. (Note that pregnancy is not considered a disability under the ADA.)
Similarly, the state Human Rights Commission regulations provide that it is an unfair labor practice "for an employer, because of pregnancy or childbirth, to . . . impose different terms and conditions of employment on a woman." WAC 162-30-020(3)(a)(ii).
So, if an employer provides light duty assignments for employees with a non-work related injury or temporary health problem, it must treat pregnant employees similarly. Federal courts have held that the PDA is not violated when it offers light duty solely to employees who are injured on the job and not to employees, including pregnant ones, who suffer from a non-occupational "injury." There is no legal requirement that an employer provide more light duty than is available to other employees with a non-work related injury or temporary health problem.
- Must employees be allowed to use sick leave to care for the parent in-laws of spouses?
There was legislation enacted in 2002 on this subject. See Chapter 243, Laws of 2002 (RCW 49.12.265-.270). If an employee is granted sick leave pursuant to a collective bargaining agreement or personnel policy, they the employer must allow the employee to use sick leave to care for a spouse, parent, parent-in-law, or grandparent who has a health condition. After January 1, 2003, employees are allowed to use sick leave to care for a parent-in-law.
- Request for information on ESSB 5264 (Chapter 155, Laws of 2002) prohibiting the misclassification of public employees.
SSB 5264 (Chapter 155, Laws of 2002) added several new sections to Ch. 49.44 RCW (RCW 49.44.160 and 49.44.170) and became effective on June 13, 2002. The intent of the legislation is to prohibit public employers from misclassifying employees, or taking other action to avoid providing or continuing to provide employment-based benefits to which employees are entitled under state law or employer policies or collective bargaining agreements. The act declares it an "unfair practice" for a public employer to
"misclassify" any employee to avoid providing or continuing to provide employment-based benefits. "Misclassifying" means to incorrectly classify or label a long-term public employee as "temporary, "leased," "contract," "seasonal," "intermittent," or "part-time," or to use a similar label that does not objectively describe the employee's actual work circumstances.
Public employers may determine eligibility rules for their own benefit plans and may exclude categories of workers such as "temporary," "seasonal," or "part-time" employees, so long as the definitions and eligibility rules are objective and applied on a consistent basis.
- May an employee receive pay from sick leave at the same time he or she receives workers compensation disability pay?
An injured employee may receive disability pay and wages available through sick leave, provided the earnings from both do not exceed the employee's normal wage. The court of appeals in May 2001 reversed an administrative board holding which previously had allowed an injured employee to be paid for missed work both through workers compensation and sick leave, resulting in a total payment greater than the employee's regular wage. The court in South Bend School District #118 v. White, 106 Wn. App. 309, 317 (2001) concluded:
[P]ersonal sick leave benefits are "wages" within the meaning of RCW 51.32.090(6), and [the injured employee] is not entitled to receive a total of personal sick leave benefits and time-loss benefits that exceeds the amount [he or] she would have earned if not injured ....
(On the other hand, the court held that shared sick leave did not constitute wages, thus allowing an injured worker to benefit from shared sick leave while being paid disability pay.)
- Must a city or county pay for nursing home care for LEOFF 1 retirees?
While it is not a "given" that nursing home care must be paid for retirees, there is a very good chance that it must. RCW 41.26.030(22)(b)(iii)(I) defines the term "medical care services" to include "nursing home confinement". The statute does not limit the type of nursing home care a retiree can obtain or place a ceiling on related expenditures. A city's liability for these costs depends on whether or not the local disability board approves the expenditure. See RCW 41.26.150.This board has great authority in approving or disapproving a medical expense claim for nursing home care. If a city or county is concerned that the expense is not warranted or is beyond what is warranted, it has an opportunity to make its case before the local disability board. If the board approves the expense, the jurisdiction is most likely obligated to pay.
- Do part-time employees accrue sick leave and vacation benefits?
This depends on city policy, since state law does not mandate a specified level of benefits for part-time employees (or, for that matter, full-time employees). Some cities do not allow part-time employees to accrue vacation and sick leave benefits. Other cities allow such accrual on a prorated basis.
- Which Washington cities and counties offer benefits for domestic partners of employees?
We are not aware of any Washington survey data on this question. Based on information in our files, the following cities and counties offer benefits for domestic partners of employees:
- Olympia
- Seattle
- Tumwater
- Vancouver
- King County
See also:
- RCW 41.04.340 allows the state to cash out an employee's sick leave (upon separation) at a 4:1 ratio. Is there a similar provision for city or county employees?
There is no similar provision for city or county employees. Sick leave benefits are completely discretionary for cities and counties - whether or not to even provide sick leave benefits and under what terms sick leave benefits will be provided, if they are. However, most, if not all, provide some form of sick leave benefits.
As to cash-out provisions for sick leave, some jurisdictions do provide some form of cash-out at retirement and/or termination. These cash-out provisions vary considerably. For example, some provide cash-out on a 2:1 ratio, some a 3:1 ratio, and some a 4:1 ratio. Some have a sliding scale (0-100%) based on number of years of employment. It's completely up to the city or county how it allows cash-out of sick leave, if it allows it at all.
Here are a few sample sick leave cash-out policies:
- Does the COBRA premium extension apply to individuals who are terminated for cause?
The stimulus package, which was enacted as the American Recovery and Reinvestment Act of 2009, temporarily reduces the premium for COBRA coverage for eligible individuals. Individuals who are eligible for COBRA coverage because of their own or a family member's involuntary termination from employment that occurred from September 1, 2008 to December 31, 2009 and who elect COBRA, may be eligible to pay a reduced premium.
If the employee's termination of employment was for gross misconduct, the employee and any dependents generally would not qualify for COBRA or the premium reduction. So an employee terminated for cause would be eligible unless the cause was based on gross misconduct.
- Can the civil service commission adopt a "rule of five?"
Apparently it may do so. The state court of appeals has upheld a Seattle civil service rule allowing the appointing authority (the chief of police) to fill a position by selecting a candidate from the top five applicants by the civil service commission. The court found that this "rule of five" had historical roots, was similar to the "rule of three" previously upheld by the court, and "substantially accomplished" the purposes of the state civil service laws.
Another aspect of the Seattle rules, however, one that allowed the chief to select from either the top five candidates or the top 25 percent of the applicants, whichever number was greater, was held to give the chief too much discretion and thus was inconsistent with state law. See Ramm v. Seattle, 113 Wn. App. 431 (2002).
The ability of cities to adopt a "Rule of Five" is based upon the statutory language that allows rules to be adopted that "substantially accomplish" the purpose of the state civil service laws. The is no similar language in the statutes relating to civil service for county sheriffs. Accordingly, counties are required to use the "Rule of Three" provided for by RCW 41.14.130.
- May the civil service commission investigate a complaint of misconduct against the fire chief that has been made by a citizen?
In our opinion, such an investigation would not be proper.
The primary purpose of the civil service commission is to assure that employment decisions are made based upon merit, rather than on politics or cronyism, such that the most qualified candidates receive employment or promotion. The commission also conducts hearings on discipline to make sure that demotions, suspensions, or terminations are based upon certain conditions, such as dishonesty or incompetence, rather than on favoritism or political reward or penalty. It is for these general purposes that the commission has the power and authority to investigate, as opposed to issues relating to the day-to-day performance of duty by covered officers. Discipline and termination authority remains with the chief executive officer of the city, not with the commission. The commission becomes activated, at least as to discipline, only if the mayor or city manager takes action against a covered employee and that employee appeals that action to the commission.
This exact issue was considered in a formal opinion of the Office of the Attorney General, AGO 1986 No. 9:
We conclude that the police civil service commission’s investigatory power does not authorize it to conduct an initial investigation respecting the conduct of classified personnel. The commission’s right to investigate does not arise until a written demand for an investigation has been filed, following removal, suspension, demotion, or discharge, as provided in RCW 41.12.090.
This conclusion would have equal application to fire department civil service, as the statutory language involved is identical.
In a booklet prepared by Susan Rae Sampson, Basic Training for Civil Service Commissioners in Washington (1991), it is stated at page 35:
Commissioners are likely to hear complaints of police misconduct from citizens who wish the Commission to convene an investigation. But the Commission's authority is limited to inquiry into merit hiring, merit promotion and sufficient cause for discharge. The Commission is not the administrative agency that oversees internal administration of the police department. Complaints of police misconduct other than allegations of tampering with the Civil Service system should be referred to the chief of police, the mayor, the county commissioners, the county executive or the voters.
Perhaps the most compelling reason for not having the commission conduct investigations of complaints is that, if it were to do so and evidence of misconduct warranting discipline or termination were found, the commission would be ineligible to consider the matter on appeal from the affected officer. In this regard, see State ex rel. Beam v. Fulwiler, 76 Wn.2d 313; 456 P.2d 322 (1969). There the court concluded that the commission could not investigate, accuse, prosecute, and then judge the controversy involved.
Thus, in this instance, it would not be proper for the commission to investigate the citizen’s complaint. The complaint should go to the mayor instead.
- Does the civil service commission have jurisdiction to review a reduction in force decision by the city council?
No. The decision of the city council to reduce the size of the police force because of budget issues is not a decision that can be reviewed by the civil service commission. This type of action does not constitute a demotion or termination of service as the term is used in the civil service statutes. It is a policy decision for the city council and such decisions do not have to be approved by the civil service commission.
In Wettrick v. Seattle, 115 Wash.. 548 (1921), the court noted the general rule:
It is well settled that it is within the powers of a city council to abolish a position in the classified civil service and thus separate an incumbent from the service and discontinue the salary thereof.
This does imply that the reduction in force is being conducted in good faith. If just one position is involved and the position is abolished and then immediately reestablished, then it may be a termination in disguise and that would be improper.
- If a new collective bargaining agreement is inconsistent with local civil service rules, which prevails?
The collective bargaining agreement would prevail. The state court of appeals held in Spokane v. Civil Service Commission, 98 Wn. App.574 (1999), that if a conflict exists between the Public Employees' Collective Bargaining Act, chapter 41.56 RCW, and the rules for police civil service commissions under chapter 41.12 RCW, the former statutory scheme prevails.
- At what point must a civil service system for police be formed in a small city or town?
At the point when the city or town has three full-time paid police officers, including the chief.
- At what point must a civil service system for fire be formed in a small city or town?
At the point when a city or town has any full-time paid fire fighters.
- May a city or town have a single civil service commission to deal with both police and fire?
Yes.
- Does state law mandate what is required if a police or fire civil service position is eliminated?
No. This is a situation in which a position is being eliminated. It is not a demotion, disciplinary action, or a layoff. State civil service law does not mandate how this must be handled.
- Should a part-time position in the police department be included in civil service?
No. The police civil service system only applies to full-time employees of the police department. See RCW 41.12.050. It applies to all full-time employees, regardless of whether they are uniformed officers or not. However, part-time employees are not covered by civil service and the civil service commission would not have jurisdiction in regard to hiring such individuals.
- May a city abolish its police civil service system if the police force is reduced to only two officers?
Yes. This may be done if the reduction is a permanent one. There is an issue concerning whether the two officers are grandfathered into the civil service system as long as they work for the city, but it appears that there is no vested right to continued civil service coverage.
- Must all employees of the police department be members of the civil service system?
Yes. If a city or town police department is subject to civil service, then all full-time employees of the police department, including clerical and support staff, must be in the civil service system. This was the conclusion in the case Teamsters Food Processing Employees, Public Employees, Warehousemen and Helpers, Local Union No. 760 v. Moses Lake, 70 Wn. App. 404 (1993).
- Which cities have excluded their police chief from civil service?
The authority to remove the police chief from civil service has been available to cities since July 1987, and applies to those individuals appointed as police chief after July 1, 1987 (see RCW 41.12.050). Based on the ordinances in our files and a sampling of municipal codes it appears that the following cities have opted to remove their police chiefs from civil service coverage:
- Auburn
- Bothell
- Camas
- Centralia
- Chehalis
- Hoquiam
- Kirkland
- Forks
- Ocean Shores
- Poulsbo
- Port Orchard
- Bainbridge Island
- Edmonds
- Des Moines
- Moses Lake
- Tukwila
- Wenatchee
For more information, see our Civil Service page.
- Is a person eligible for veterans' preference in civil service if they have only been in the military a few months before being honorably discharged for medical reasons?
Yes. There is no minimum time that has to be served before a person is eligible to be considered a veteran for preference purposes. RCW 41.04.005 defines "veteran" to include every person "who at the time he or she seeks the benefits" of veterans' preference status "has received an honorable discharge or received a discharge for physical reasons with an honorable record. . . ." For more on this topic, see our "Veterans' Preference/Scoring Criteria" Web page.
- Can cities extend the probationary period for new police hires from six to twelve months?
This is in response to your inquiry regarding whether cities can extend the probationary period for new hires from six to twelve months. You've indicated that the six-month probationary period does not provide enough time to evaluate candidates since the police academy is nearly five months long.
Although the state statute relating to civil service for city police officers specifies a six-month probationary period (see RCW 41.12.100), there are cities in the state that have a one-year probationary period for police officers. These cities have argued that the one-year probationary period substantially accomplishes the purpose of the state civil service laws.
The state court of appeals in Arbogast v. Westport, 18 Wn. App. 4, 567 P.2d 244 (1977), upheld the city of Westport's one-year probationary period, basing its decision in part on the fact that Westport has a seasonally-fluctuating population, which makes a six-month probationary period less effective. Although it is not clear whether this case justifies a one-year probationary period in all cities and towns, a one-year period may be defensible in other cities and towns for other reasons. In view of the increasing requirements for police training, a good argument can be made that an extension of the probationary period from six to twelve months may be necessary to enable additional time to evaluate candidates once they have completed their academy training.
- May the fire department civil service commission exempt a number of fire fighter positions from civil service coverage?
The only position that may be exempted from civil service coverage in a city fire department is the chief. There is no provision for exempting other full-time members of the fire department. See RCW 41.08.050, which provides that all full-time members of the fire department are to be included in the civil service system, except for the chief.
This is different from the statutory provisions on police civil service. There is specific authorization in RCW 41.12.050 to designate some positions in the police civil service system as unclassified and exempt from civil service coverage.
- Is homework that accompanies a required training course for city or county employees compensable time?
Yes. We reviewed this in the FLSA Handbook for States, Local Governments and Schools, by Thompson Publishing Group. There is a discussion of this issue in Section 461 on "Time Spent Studying or Doing Homework." As a general proposition, time spent doing homework for required training courses is compensable time.
There is one exception to this rule which is that, if the study activity is of a general nature and of benefit to the worker as well as the employer, it may not be compensable working time.
- How many hours must an exempt employee work on a particular day in order to be paid for that day?
According to the Federal Fair Labor Standards Act (FLSA) regulations, 29 C.F.R. 541.602:
An exempt employee must receive his or her full salary for any week in which he or she performs work, without regard to the number of days or hours worked, unless one of the following exceptions is met:
- The employee is absent from work for one or more full days for personal reasons, other than sickness or disability;
- The employee is absent for one or more full days because of sickness or disability (including work-related accidents) and the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability;
- The city imposes, in good faith, unpaid disciplinary suspensions of one or more full days for infractions of certain workplace conduct rules;
- The city imposes penalties in good faith for infractions of safety rules of major significance;
- The employee takes leave under the Family and Medical Leave Act (FMLA); or
- The employee is absent the entire workweek or performs no work during an entire workweek.
Deductions also are not allowed when the absence is caused by jury duty, attendance as a witness, temporary military leave, or if the absence was occasioned by action of the city (e.g., closing city hall for the day in order to put in new flooring).
On the other hand, if the public employer has adopted a personnel policy providing for sick or vacation leave, the employer may "dock" an employee's salary if leave is taken for personal reasons after his or her leave balances have been exhausted. Salary may also be docked, if an employee takes unpaid leave provide for under the Family and Medical Leave Act (FMLA).
- How are overtime issues addressed where a person works two jobs in the city, one as a jailer and one as a fire captain?
When a person works two different jobs for the same employer, there are two alternatives under the FLSA as to how he or she could be paid for any overtime. Under one alternative, this employee would be paid for overtime based on a regular rate of pay that is calculated as the weighted average hourly rate earned during the week. See 29 C.F.R. Sec. 778.115. Under the other alternative, the employee "may agree with his employer in advance of the performance of the work that he will be paid during overtime hours at a rate not less than one and one-half times the hourly nonovertime rate established for the type of work he is performing during such overtime hours." 29 C.F.R. Sec. 778.419.
There is a further overtime issue in this circumstance, because the trigger for overtime is different under the FLSA for law enforcement (171 hours per 28-day work period, or prorated for a shorter work period) and for fire protection (212 hours per 28-day work period, or prorated for a shorter work period). So if this person works both in law enforcement and fire protection, the overtime is calculated based on the job "in which the employee spends the majority of work time during the work period." 29 C.F.R. Sec. 553.213.
- Whether the county sheriff can require supervisors to carry pagers when off-duty so that they can be contacted in case of emergency?
After a review of the FLSA regulations and the caselaw, it is our opinion that the sheriff can require that supervisors carry a pager when they are off duty so that they can be contacted in case of an emergency.
There are a number of cases that discuss whether "on call" personnel provided with pagers must be compensated during "on call" time when they are waiting to be engaged to work. Generally, the courts have noted that pagers may be used to facilitate quick responses from "on call" employees. The primary case in the 9th Circuit Court of Appeals is Berry v. County of Sonoma, 30 F.3d 1174; 1994 U.S. App. LEXIS 18726 (6/26/94). According to the Berry case, a predominant factor in determining whether on-call waiting time is compensable is "the degree to which the employee is free to engage in personal activities." The proper inquiry is "whether [an employee] is so restricted during on-call hours as to be effectively engaged to wait." The requisite degree to which an employee must be free to engage in personal activities does not require that "the employee . . . have substantially the same flexibility or freedom as he would if not on call, else all or almost all on-call time would be working time, a proposition that the settled case law and the administrative guidelines clearly reject."
The Fourth Circuit Court of Appeals addressed this precise issue in Whitten v. The City of Easley, 62 Fed. App. 477, 2003 U.S. App. Lexis 6739, 2003 WL 1826672 (4th Cir. 2003) (note that this case cited the Berry case). In that case the court determined that the city firefighters' on-call policy was not so restrictive as to require payment under the FLSA as hours worked. Firefighters carried pagers, were "encouraged" to respond to 80 percent of the call outs, received an average of 6 calls per month and were free during their on-call time to engage in personal pursuits, including dining, shopping, imbibing, and working part-time jobs. In determining whether "on call" time is compensable as overtime, courts consider whether the time is spent predominantly for the employer's benefit or for the employee's benefit. In other words, the question is whether the employee is "engaged to wait" or "waiting to be engaged." To distinguish between these two, courts weigh several factors, including: (1) whether the employee may carry a beeper or leave his home; (2) the frequency of the calls and the nature of the employer's demands; (3) the employee's ability to maintain a flexible "on call" schedule and switch "on call" shifts; and (4) whether the employee actually engages in personal activities during "on call" time. This analysis is important because the FLSA only requires employers to compensate employees who are "engaged to wait."
Merely carrying pagers does not entitle supervisors to compensation. In fact, carrying pagers enables them to freely engage in personal activities and leave their homes. The pagers allow them freedom and flexibility to engage in personal pursuits.
- Can a municipal corrections officer volunteer with a City as a Reserve Police Officer or would this conflict with the Fair Labor Standards Act of employee's volunteering similar work duties?
Whether someone is classified as a "volunteer" or an "employee" is governed by the federal Fair Labor Standards Act (FLSA), 29 U.S.C. 201, et seq. The FLSA, at 29 U.S.C. 203(e)(4)(A)(ii), does not permit an individual to perform hours of volunteer service for a public agency when such hours involve the same type of services which the individual is employed to perform for the same public agency. An FLSA regulation, 29 CFR 553.103(a), states that the phrase "same type of services" means "similar or identical services."
A February 18, 1992 Department of Labor (DOL) administrative letter ruling, concerning a county detention officer (jailer) who wanted to volunteer as a reserve deputy sheriff, concluded that:
An individual employed as a detention officer is engaged in law enforcement activities (public safety) functions. Some duties performed by a detention officer (jailer) are similar to those performed by a deputy sheriff. Moreover, public safety employees taking any kind of security or safety function within the same local government are never considered to be employed in a 'different capacity.'
In light of the legislative history of the FLSA Amendments of 1985 wherein the Secretary of Labor was admonished to strictly interpret the term 'different capacity', we do not believe that the term 'same type of services' should be interpreted to allow a detention officer to volunteer as a deputy sheriff.
We believe that the same reasoning would apply to prohibit a paid municipal corrections officer from also serving as a volunteer reserve police officer for a city. Under the reasoning above, the mere fact that both positions are engaged in public safety and security functions would have them performing the "same type of service" for the city. As such, the corrections officer should not be permitted to volunteer as a reserve police officer.
- What is the FLSA?
The Fair Labor Standards Act sets minimum wage, overtime pay, equal pay, recordkeeping, and child labor standards for employees covered by the Act and not exempt from specific provisions. It is a federal law, enacted by the United States Congress in 1938. Initially, the FLSA applied only to private sector employers. However, in 1985 the U.S. Supreme Court concluded that Congress could apply the FLSA to state and local governments under the Commerce Clause of the Constitution. Since 1985, cities and towns have had to comply with the FLSA.
- Must municipalities comply with both federal and state overtime laws?
Yes. Cities must comply not only with the federal Fair Labor Standards Act, but also with the Washington State Minimum Wage Act, which also applies to public agencies and contains overtime requirements. Most of the provisions of the two Acts are similar. However, when there is a difference, the municipality must comply with the most liberal law when viewed from the employee's perspective. Therefore, when state law provides greater benefits than the FLSA, the city must comply with state law. If the reverse is true, the city must comply with the federal law.
- May the provisions of the FLSA be waived in a union contract?
The general answer here is no. If a collective bargaining agreement calls for benefits which are less generous than the FLSA, the agreement is invalid and the provisions of the FLSA take precedence.
- May a city or town be more generous in its personnel policy to employees than required by the FLSA?
Yes. The FLSA is intended to establish a floor below which overtime and other benefits cannot be set. However, cities are free to establish local personnel policies which provide more generous benefits to employees.
- Are all employees of a city or town covered by the Act?
No. Not all city employees or workers are covered by the FLSA. Some are referred to as non-covered employees, and include elected officials, staffs of elected officials, bona fide volunteers, and independent contractors. If an employee is not covered by the Act, then none of its provisions apply, including recordkeeping requirements.
- What is the white collar exemption?
A threshold requirement for application of the white collar exemption is that the employee be paid on a salary basis. If the salary basis requirement is not satisfied, an employee cannot meet the requirements of the white-collar exemption and overtime must be paid.
The mere fact that an employee is paid on a salary basis does not alone qualify the employee as exempt. The exemptions are also based on the actual duties of the position (the job title alone does not determine whether the position is exempt or not). The FLSA regulations contain tests to determine if a specific position is exempt as an administrative, executive, or professional position.
- When are police and fire employees exempt from the overtime requirements of the Act?
A special test exists for public safety employees. The FLSA provides a complete overtime exemption for any employee of a public agency who in any given week engages in law enforcement or fire protection if the agency employs fewer than five employees during the work week in law enforcement or fire-fighting activities.
For purposes of this exemption, the number of law enforcement and fire protection employees are considered separately. For example, if a city employs fewer than five employees in fire protection activities but more than five employees in law enforcement activities, it may claim an exemption for the fire protection employees but not for the law enforcement employees. Part-time employees are counted in determining the number of public safety employees, but true volunteers are not. (It is important to remember that an exemption from the overtime requirements of the federal FLSA does not mean such police officers and fire fighters are exempt from state overtime laws).
- When is overtime compensation required?
The FLSA does not limit the number of hours that an employee may work, either daily or weekly. It merely requires that overtime must be paid for each hour worked in a work week in excess of the maximum hours applicable to the type of employment in which the employee is engaged. This usually means that overtime must be paid for hours worked in excess of 40 hours per week. The Act does not require that an employee be paid overtime compensation for hours worked in excess of eight per day, or for work on Saturdays, Sundays, holidays, or regular days of rest, so long as the maximum number of hours prescribed in the Act are not exceeded.
- What is the applicable work week for police and firefighters?
For most public employees, the work week is a period of seven consecutive 24-hour periods. However, the FLSA contains a partial exemption in the overtime provisions for certain law enforcement and fire protection employees. Basically, the exemption allows an adjustment to the work period. The work period for police or firefighters may vary from the standard length of seven days up to 28 days. MRSC has a copy of the chart available which illustrates the maximum allowable hours in any given work period for police and firefighters before overtime pay is required.
- Do sick leave, vacation, holidays, or other such absences count towards the number of hours worked?
No. Overtime need only be paid for all hours actually worked in excess of 40 in a week. This is the case even if the sick day (vacation, holiday, snow emergency day, etc.) is paid. However, some collective bargaining agreements do call for calculating sick days as compensable working time, and the employer must follow the terms of such an agreement.
- Must a city pay overtime if an employee works 10 hours in a day?
Not necessarily. Overtime requirements are calculated on a work week basis and an employee may work 10 hours in one day without exceeding any overtime requirements.
- Is on-call time counted as a compensable hour of work?
This is a difficult area to answer on a general basis. The answer depends upon the extent of the employee's freedom during the on-call time. If employees are required to remain on the premises of the employer or so near as to preclude engaging in personal activities, the time will probably be compensable.
- May compensatory time be utilized under the FLSA?
Yes. Public employers are allowed to provide compensatory time off in lieu of paid overtime. Employers are not required to provide a comp time option for employees, but it is an alternative available. The FLSA does provide a cap on comp time which may be accumulated by employees. The cap for employees in public safety activities is 480 hours of comp time, and for all other employees, the cap is limited to 240 hours. Cities may place a lower cap on accrued comp time if desired.
- May a city set cap on accumulation of compensatory time and what limits do other cities put on comp time accumulation?
The Fair Labor Standards Act (FLSA) limits the accumulation of comp time to 240 hours for non-public safety employees and 480 hours for public safety employees (police and fire). It does not prohibit local governments from setting a lower limit on the accumulation of comp time. It is a recommended practice to limit comp time accumulation.
Limits may be placed on the number of hours of comp time accumulated and the time by which it must be used. A sampling of comp time restrictions from other cities shows that 40 hours is a common limit on accumulated time. The range is from 24 to 160 hours. Limits on the time period for the use of comp time (or overtime is paid instead) include 30 days, 60 days, 12 months, and within the same pay period.
- Must overtime be paid in the pay period in which it is earned under the FLSA?
Not always. Although overtime must be calculated weekly, it is not required to be paid weekly. As a general rule, overtime earned in a particular workweek should be paid whenever possible on the regular payday for the period on which the week ends. However, when the correct amount of overtime compensation cannot be determined until later, it is permissible to pay it as soon after the regular pay period as is practicable. Payment should not be delayed beyond the next payday.
- May cities require an employee to take compensatory time rather than overtime pay?
No. This is not legal under either federal or state law. An employee may choose, with city agreement, to take comp time rather than overtime pay, but the city may not require it.
- Is the time a non-exempt city employee spends traveling to a required job-related seminar in another city considered to be compensable time?
Yes. The general rule under the federal Fair Labor Standards Act is that time spent by a non-exempt employee as part of the employer's principal activity must be counted as hours worked. Normally commuting time to and from the work site is not compensable. But when an employee is traveling out of town for the employer's benefit and at the employer's request, the travel time is considered part of the "principal activity" of the employer, so the time is compensable. See 29 C.F.R. 785.37 and 785.38.
- If a general employee (not a police officer or firefighter) is employed at two different jobs for a city and the combined hours for both jobs exceed 40 hours, must the city pay overtime?
Yes. An employee is entitled to overtime if he or she works more than 40 hours a week, even when the total number of hours results from working two different city jobs. Overtime is calculated by determining the weighted average of the different pay rates. For example, overtime for a person working 30 hours at $10/hour and 20 hours at $12/hour is calculated as follows: (30 x $10) + (20 x $12) = $540, divided by 50 hours = $10.80 per hour of overtime. Alternatively, the employee and the city may agree that overtime pay will be based on the wage for the job that results in the overtime hours.
The overtime rules for police officers and firefighters are different. For more information on this subject, see our Fair Labor Standards Act page.
- May police officers volunteer their time and work for the city or county as volunteers?
This issue involves the application of the Fair Labor Standards Act, which applies to all cities, towns and counties in which the police or sheriffs department employs five or more paid employees during the work week. The FLSA provides that a police officer may not volunteer his or her time to the city or county if the service he or she is performing is police work. If the employee is performing police duties then he or she must be paid for the work. A person cannot be both a paid employee of the city or county and an unpaid volunteer performing the same type of work. The hours worked as a volunteer would also count toward determining if overtime is required to be paid the police officer.
However, a police officer could volunteer and perform work for the city or county so long as the duties of the volunteer position are entirely different from those of a police officer. For example, a police officer could volunteer to work as a referee at basketball games for a city or county basketball league and compensation would not be required under the FLSA.
For more information on this subject, see our Fair Labor Standards Act page.
- When an employee is on stand-by does federal or state law require that he or she be compensated for the time spent commuting to the job when they're called back to work?
According to the FLSA regulations at 29 C.F.R. 785.36:
There may be instances when travel from home to work is overtime. For example, if an employee who has gone home after completing his day's work is subsequently called out at night to travel a substantial distance to perform an emergency job for one of his employer's customers all time spent on such travel is working time. The Divisions are taking no position on whether travel to the job and back home by an employee who receives an emergency call outside of his regular hours to report back to his regular place of business to do a job is working time.
This regulation seems to say that if the on-call employee has to travel back to his/her regular work place then compensation is not required. However, if an employee has to travel a "substantial distance" to sites other than his/her place of regular employment, then the travel time should be compensated. Unfortunately, there is no definition of what constitutes a "substantial distance."
The FLSA: The Public Employer's Guide states in 4.7:
While ordinary home-to-work travel need not be counted as hours worked, the home-to-work travel of an employee who has gone home after completing a day's work and who is subsequently called back to handle an emergency is generally counted as hours worked. However, time spent traveling to respond to an emergency call that occurs shortly before the regular work period is scheduled to begin probably need not be counted as hours worked, because the employee would have been required to report to work even if no emergency call had been made.
However, The Fair Labor Standards Act: A Public Sector Compliance Guide, Sec. IV at p. 14 provides:
LCF Practice Advisor:
. . . the DOL has expressly declined to formulate a general rule on the compensability of home-to-work travel for emergency calls. Employers should attempt to reach an agreement concerning this issue.
In light of these seemingly conflicting commentaries, the best practice would be for a city to establish a clear policy clarifying the times when on-call travel will be compensated. For example, compensation could be based on distance traveled, or be triggered by a certain number of call-back times within a one-month period.
- What is an "exempt" employee?
This term refers to employees who are exempt from the overtime provisions of the federal Fair Labor Standards Act (FLSA) and/or the Washington Minimum Wage Act (MWA) in chapter 49.46 RCW. The FLSA sets the federal minimum wage and overtime pay requirements for employers, including local governments. Employees who work in professional, administrative, or executive positions are "exempt" for purposes of the FLSA's overtime requirements.
The MWA sets similar standards and has similar exemptions for Washington employers and employees. When there is a difference between the two laws, the municipality must comply with the most liberal law when viewed from the perspective of the employee.
For more information on this topic, see our Fair Labor Standards Act Web page.
- If an individual works on a holiday, do they receive holiday pay plus time and a half or do they just receive holiday pay plus their regular pay?
Neither the federal Fair Labor Standards Act (FLSA) nor the state Minimum Wage Act, chapter 49.46 RCW, require payment of overtime (time and a half) or other type of premium pay for work on a holiday.
Eligibility to receive overtime pay is based upon the FLSA and state minimum wage laws that, for most employees (other than fire and police positions and those positions that are exempt from the FLSA requirements), is triggered by work in excess of 40 hours within a seven-day work period. Overtime pay is due to such employees regardless of any locally-adopted premium pay provision, such as holiday pay. Since there are no federal or state requirements to provide such holiday pay, if such a benefit is provided, it would be provided on those terms established or negotiated by the local government.
- Can a temporary summer-hire firefighter continue to respond as a volunteer during off hours?
An employee is not permitted under the Fair Labor Standards Act (FLSA to volunteer to perform the same types of services he or she is paid to perform. See 29 U.S.C. §203(e)(4)(A)(ii); 29 C.F.R. §553.102. Clearly, here, the employee would be performing the "same type of service" when volunteering. It does not matter that the employee here is temporary. So, any "volunteer" hours would have to be considered hours worked and would have to be paid.
- Is there a new test for determining what constitutes "nominal compensation" for purposes of volunteer status under the Fair Labor Standards Act?
In regard to what is new on the question of what constitutes "nominal compensation" that can be paid to be a volunteer, there are several recent Department of Labor (DOL) letters that adopt a 20 percent rule - that is, DOL will presume that the fee paid to a volunteer is nominal if the fee does not exceed 20 percent of what the agency would otherwise pay for a full-time person who performs the same service. See the DOL letters below outlining this position:
- Must a father be given same leave benefits after childbirth as a mother is given?
Yes. RCW 49.12.350 provides in part:
[T]he legislature declares that it is the public policy of this state to require that employers who grant leave to their employees to care for a newborn child make the same leave available upon the same terms for adoptive parents and stepparents, men and women.
And, RCW 49.12.360(2) implements that policy by providing that “An employer must grant the same [parental] leave upon the same terms for men as it does for women.”
- Family and Medical Leave - May leave resulting from injury or illness covered by workers' compensation run concurrently with FMLA leave?
Yes. FMLA regulations specifically address this; 29 C.F.R. Sec. 825.702(d)(2) provides in part as follows:
An employee may be on a workers' compensation absence due to an on-the-job injury or illness which also qualifies as a serious health condition under FMLA. The workers' compensation absence and FMLA leave may run concurrently (subject to proper notice and designation by the employer).
For more information, see our Family Medical Leave Act Web page.
- How are the number of employees counted for purposes of the FMLA?
The FMLA provides that although all public employers are covered by the Act, their employees are only eligible for leave under the Act if certain conditions are met. The employee must have worked for the city for at least a twelve month period (not necessarily consecutive), must have worked at least 1250 hours during the 12 months prior to when the leave would begin, and must work at a location where at least 50 employees are employed by the employer within a 75 miles radius.
When calculating the number of employees, the city must include part-time employees, seasonal or temporary employees, employees on leave, and employees that are shared with other jurisdictions. An otherwise eligible employee could qualify for leave under the FMLA if, on the day he or she applies for the leave, the city has more than 50 employees counted as explained above.
- How do the provisions in the federal Family and Medical Leave Act compare to the Washington State Family Leave Act in regard to parental leave?
The federal act, FMLA, requires leave to be granted to care for the "birth" of a child and for a newly-placed adoptive or foster child. There is no age limit on the child being adopted or placed in foster care (although there is some limitation for state placements of foster children). Both male and female employees may take this leave, and it may commence before the actual birth or placement of the child.
The Washington Family Leave Act (ch. 49.78 RCW), requires employers to allow employees to use accrued sick leave, but only applies to employers with 50 or more employees at the work site (this applies to both state and local government employers). Washington law requires that all employers who provide any form of parental leave (other than maternity disability leave) to biological parents, must also provide this same leave for both adoptive parents and stepparents, and to men as well as women. The Act grants employees unpaid leave to be used to, among other things, care for newborn or newly adopted children. Note that employers must consult both the FMLA and state regulations and apply the most generous provisions.
- Do elected city officials (such as the mayor and councilmembers) count toward the initial fifty employees that are required before a public entity has eligible employees under the federal Family and Medical Leave Act?
No. The federal FMLA actually applies to all public employers regardless of number of employees. However, public employees are only eligible for the benefits of the FMLA if there are fifty or more employees who are employed at a work site within 75 surface miles of the employer. (This is very confusing in itself but is the way the law is written). In any case, according to FLSA, persons who hold a public elective office in a city, such as the mayor and councilmembers, are not employees for purposes of the FMLA.
- Must a local government employer count FMLA qualifying leave as FMLA leave when it knows or could know that it qualifies, but where the employee does not request FMLA leave?
No, although the employee would nevertheless be protected by the FMLA, FMLA regulations, specifically 29 C.F.R. 825.208(2)(c), provides in part as follows: If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee either gives notice of the need for leave or commences leave and fails to designate the leave as FMLA leave (and so notify the employee in accordance with paragraph (b)), the employer may not designate leave as FMLA leave retroactively, and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the Act, but none of the absence preceding the notice to the employee of the designation may be counted against the employee&s 12-week FMLA leave entitlement. While it is doubtful that an employer would voluntarily choose not to count the leave as FMLA leave, the situation may arise because of an inadvertent failure to designate the leave as FMLA leave, despite the availability of knowledge that it qualified.
- May an employee take intermittent leave under the Family and Medical Leave Act (FMLA) that, for example, would consist of 10 days at the birth of a child and then for a period of a month beginning six weeks later?
Yes, with the employer's agreement. "Intermittent leave "is defined in FMLA regulations as "leave taken in separate periods of time due to a single illness or injury rather than for one continuous period of time" (29 C.F.R.825.800) and as "FMLA leave taken in separate blocks of time due to a single qualifying reason "(29 C.F.R.825.203(a)). The leave requested in this instance would appear to qualify as intermittent leave. Under 29 C.F.R.825.203(b),"When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees."
- Who has the authority to designate leave as FMLA leave - the employer or the employee?
The situation addressed by this question is where the employee takes leave as something other than FMLA leave, even though the circumstances would qualify it as FMLA leave. Can the city require that the leave be designated as FMLA leave, rather than as, say, sick leave?
The answer appears to be yes, the city may designate the leave as FMLA leave. This conclusion is based on 29 C.F.R. 825.208, which states in part:
In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.
This is a long regulation, but it is clear from reading it that, if an employee wants to take leave for something that qualifies as FMLA leave, the employer may designate it as FMLA leave, even if the employee wants it designated as sick leave. Sections (c) and (d) makes this fairly clear:
(c) If the employer requires paid leave to be substituted for unpaid leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, this decision must be made by the employer within two business days of the time the employee gives notice of the need for leave, or, where the employer does not initially have sufficient information to make a determination, when the employer determines that the leave qualifies as FMLA leave if this happens later. The employer's designation must be made before the leave starts, unless the employer does not have sufficient information as to the employee's reason for taking the leave until after the leave commenced. If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee either gives notice of the need for leave or commences leave and fails to designate the leave as FMLA leave (and so notify the employee in accordance with paragraph (b)), the employer may not designate leave as FMLA leave retroactively, and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the Act, but none of the absence preceding the notice to the employee of the designation may be counted against the employee's 12-week FMLA leave entitlement. (d) If the employer learns that leave is for an FMLA purpose after leave has begun, such as when an employee gives notice of the need for an extension of the paid leave with unpaid FMLA leave, the entire or some portion of the paid leave period may be retroactively counted as FMLA leave, to the extent that the leave period qualified as FMLA leave. For example, an employee is granted two weeks paid vacation leave for a skiing trip. In mid-week of the second week, the employee contacts the employer for an extension of leave as unpaid leave and advises that at the beginning of the second week of paid vacation leave the employee suffered a severe accident requiring hospitalization. The employer may notify the employee that both the extension and the second week of paid vacation leave (from the date of the injury) is designated as FMLA leave. On the other hand, when the employee takes sick leave that turns into a serious health condition (e.g., bronchitis that turns into bronchial pneumonia) and the employee gives notice of the need for an extension of leave, the entire period of the serious health condition may be counted as FMLA leave.
- When do the federal Family Medical Leave Act (FMLA) provisions apply to a city or county?
The answer to this is somewhat confusing. On the one hand, all public agencies are covered by the FMLA, regardless of the number of employees. However, for an employee of a public agency to have FMLA rights, the employer must employ at least 50 employees at the worksite or within 75 miles of it.
So, the bottom line is that if a city does not employ at least 50 employees, then the employees are not entitled to FMLA rights.
Note that a federal appeals court has ruled that employers do not have the luxury of asserting this defense at any time in the course of litigation. Rather, they must make the claim either before the trial begins or during the trial. If they do not, they will be deemed to waive the defense. See Minard v. ITC Deltacom Communications Inc., No. 04-30230 (5th Cir., 4/18/2006).
- Must a city or county grant family leave under state law to an employee who has an adult child who is incapable of self-care, if the child has a spouse who could care for her? How about for daughters-in-law?
The law to which you refer has an expanded definition of the term "child;" RCW 49.12.265(1) defines the term "child" as follows:
(1) "Child" means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is: (a) Under eighteen years of age; or (b) eighteen years of age or older and incapable of self-care because of a mental or physical disability.
As you can see from the definition, the term includes adult children who are incapable of caring for themselves due to a physical disability. The statute places no other limitation on the term or its coverage. Accordingly, so long as the child cannot care for him/herself due to a physical disability, the leave is available to the parent, regardless whether the adult child has a spouse or someone else who could provide care. See RCW 49.12.270.
Could a city or county be required to grant leave to an employee so that the employee could care for an adult daughter-in-law? No. As you can see from the above definition of "child," the relationship between the employee and the child must be either biological or the child must be adopted, a foster child, a stepchild, or a legal ward. This would not include a daughter-in-law.
Here is a question and answer from the Department of Labor and Industries concerning the family care law that further supports these conclusions:
7. Under what circumstances is a parent of an adult son or daughter covered? The scope of the rules includes children regardless of age, school attendance or marital status. If an adult son or daughter (i.e., 18 years of age or older) is “incapable of self-care because of a mental or physical disability … that limits one or more activities of daily living,” then s/he is covered under this rule. The disability does not need to be a chronic condition to be covered. Traumatic injuries, surgery, illness, and some conditions relating to pregnancy may also cause a temporary disability for an individual. A disabling condition is one that prevents an individual from engaging in activities such as bathing, dressing, eating, cooking, shopping, or using public transportation without active assistance. Some individuals with a mental disability would be even more limited for other basic needs described in the rules.
- A new hire has been called up into military service. He has not completed training or civil service probation requirements. Is he covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA)?
Yes, he would be covered. USERRA, at 38 USC 4312(d)(1)(c), provides for an exclusion when:
[T]he employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.
Only very temporary positions, such as seasonal workers, are excluded (and, according to one commentator, this exclusion is very narrowly construed). A newly-hired employee is covered.
- Military Leave - How is military leave calculated under state law for firefighters who work a 24-hour shift?
RCW 38.40.060 entitles a public employee to an excused absence for any calendar day in which the employee cannot work due to the necessity of reporting for active military duty. The statute entitles each employee to 21 such days in any calendar year. Calculating what constitutes a day can be confusing for employees with non-traditional workdays, such as firefighters who may work a 24-hour shift.
A method for calculating use of military leave is contained in an attorney general opinion, AGO 1999 No. 2. This AGO contains examples of different work schedules and how to calculate military leave time.
For more information on this subject, see our "Military Leave" Web page.
- Must city or county allow an employee to take time off for volunteered military training?
Yes.
Under Washington law, an employee is entitled to a military leave of absence for a period not to exceed 21 days each calendar year. RCW 38.40.060. During this leave, the employee continues to be paid his or her regular salary.
Under a 1999 attorney general opinion, a day is calculated according to the number of days the person would have worked, but for the military training. Thus, if the employee were scheduled to work 2 hours on a day, but for the military commitment, that would be a military leave day. Similarly, if the employee was scheduled to work 12 hours on a single day, that too would constitute one military leave day. See AGO 1999 N0. 2.
It does not matter whether the person was ordered to take the training or whether he or she volunteered. See 38 USC sec. 4301(13).
There is no requirement that a Washington employer grant more than 21 days paid leave; however, the employer must agree to, under most circumstances, reemploy the employee, under terms of the federal Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301 et seq. (USERRA). The reemployment rights end after five years cumulative total of military service. The rights are available whether the person is in combat, active duty for training, or inactive duty.
- If a firefighter is called into military service and returns in one year, does he go back to the job he left or to the job he likely would have been at?
The firefighter would likely be returned to the job he would have been at, had he not been called into service. See 38 USC 4313(2) of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Even though some qualification may be (or would have been) necessary, the officer likely would have advanced into the next higher position, had he remained employed to the city.
Under USERRA (cited above) it appears that the person goes into the higher position, so long as he is qualified for the position or could become qualified for the position after reasonable efforts by the city. If after reasonable efforts the person is not qualified, he would be returned to the position he held when he left for military service.
- Do employees continue to accrue vacation leave while on military service?
Not usually. An employee when called into active service is treated as if he or she was on either a furlough or leave of absence. If the city or county allows the employee to continue his or her accruals during a furlough/leave of absence, then he or she would continue to receive accruals during the military leave. However, without such a policy, the employee would not accrue the leave.
If the length of a person's vacation is determined by length of service, then the time spent on active duty would be added to the length of the employee's employment for determining the amount of vacation he or she is entitled to. For example, if an employee adds a day of vacation for each year of employment, he or she would add a day of vacation if on military leave for a year.
For more information on this topic, see our Military Leave page.
- Does USERRA apply to probationary employees?
The answer to that question is clear; yes, USSERA applies to a probationary employee, based on its definition of "employee" as "any person employed by an employer." 38 U.S.C. §4303(3). A probationary employee is employed by an employer and therefore is an "employee" covered by USERRA. (Note that this will typically become an issue only in the context of civil service.)
- If a probationary employee enters and then returns from military service within five years, does that probationary employee, upon reemployment pursuant to USERRA, return to probationary status?
Although USERRA does not provide any specific guidance on this question, the consensus appears to be that the probationary employee returns to probationary status upon reemployment following military service. We discussed this issue with a mediator from the National Committee for Employer Support of Guard and Reserve (NCESGR), a Department of Defense agency that provides information on USERRA to employers and employees and that seeks to resolve disputes on an informal basis. (1-800-336-4590)
In general, employees returning to employment from military service are entitled to the seniority and rights and benefits that they would have with reasonable certainty attained had they remained continuously employed. 38 U.S.C. §4316(a). However, a returning probationary employee is not entitled to automatic completion of his/her probationary period because completion of probation is not based on seniority but rather is subject to a "significant contingency" - satisfactory performance during the probationary period. (Although USERRA does not employ the term "significant contingency," it is applied in this context by numerous resources that were consulted on this question.)
Once the returning probationary employee satisfactorily completes the probationary period, then he or she would receive those seniority-based rights and benefits that were not immediately available, because of probationary status, upon return from military service. In other words, those seniority-based rights and benefits are deferred until completion of the probationary period.
- How does the USERRA protection from termination without cause for up to one year apply to a returning probationary employee?
Under USERRA, an employee who has returned from military service of more than 30 days but less than 181 days cannot be discharged except for cause for six months after reemployment. If the employee served more than 180 days, he r she cannot be discharged except for cause for one year after reemployment. 38 U.S.C. §4316(c).
This provision presents a practical problem with respect to a returning probationary employee if, upon return, the probationary employee does not successfully complete probation. Under civil service law, a city or county may terminate a probationary employee during the probationary period "if the appointing power deems him unfit or unsatisfactory for service in the [fire or police department or office of county sheriff]." RCW 42.08.100; 41.12.100; 41.14.130. So, the probationary employee is, basically, an at-will employee who may be terminated for less than just cause. The statutory civil service probationary period is, for city police and fire departments, from three to six months (RCW 42.08.100; 41.12.100) and, for the county sheriff's office, one year (RCW 41.14.130). (Some cities provide for a longer probationary period than specifically authorized by state law.) But, under USERRA, a city or county may not terminate even a probationary employee for six months or a year after reemployment, depending upon the length of service (as long as the service was for more than 30 days), except for just cause.
So what does a city or county do with a returning probationary employee who cannot be terminated except for cause for six months or a year after reemployment if the city or county determines, during the remainder of the probationary period after reemployment, that the employee is "unfit or unsatisfactory for service"? If a city or county wants to terminate a returning probationary employee for less than cause before the end of the probationary period, it may not do so until the applicable six-month or one-year period under USERRA ends. But the city or county would in this situation (in most cases) be faced with the problem of either extending the probationary period beyond that authorized in the local civil service rules or allowing the probationary employee to become a "regular" employee who cannot be terminated, under civil service law, except for just cause.
So, it may behoove a city or county to allow in its civil service rules for the probationary period to be extended under this circumstance. Then, upon expiration of the six-month or one-year period after reemployment, as the case may be, the employee would still be on probation and could then be terminated for less than cause. Assuming that this is the way USERRA would be applied in this circumstance, the probationary employee who would be terminated would receive the USERRA benefit of not being fired except for cause for a six-month or one-year period, but he or she would not receive the seniority-based benefits under USEERA.
- If the city has a reduction in force and one of the employees who would be released is on military assignment, can his position be terminated under USERRA?
In our opinion, the city, or any local government employer, would not be required to re-employ the returning officer. As a general rule an employer must re-employ an employee who is serving on a military assignment. However, there are certain exceptions; 38 USC § 4312(d)(1)(A) (part of USERRA) states:
(d)(1) An employer is not required to reemploy a person under this chapter if -
(A) the employer's circumstances have so changed as to make such reemployment impossible or unreasonable;
(B) in the case of a person entitled to reemployment under subsection (a)(3), (a)(4), or (b)(2)(B) of section 4313, such employment would impose an undue hardship on the employer; or
(C) the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue
indefinitely or for a significant period.
(2) In any proceeding involving an issue of whether -
(A) any reemployment referred to in paragraph (1) is impossible or unreasonable because of a change in an employer's circumstances ...
In A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA), the US Department of Labor states:
Changed circumstances Section 4312(d)(1)(A)).
Reemployment of a person is excused if an employer’s circumstances have changed so much that reemployment of the person would be impossible or unreasonable. A reduction-in-force that would have included the person would be an example. (Emphasis added)
Thus, it appears that the city would not be required to re-employ the returning officer.
- When is the holiday taken if it falls on a Saturday or a Sunday?
If the holiday falls on a Saturday, it should be taken on the preceding Friday; if the holiday falls on a Sunday, it is taken the following day, on Monday. See RCW 1.16.050.
- Is it necessary for a city, town or county to provide a coffee break (rest period) for employees?
Yes, it would now appear so. Department of Labor and Industries regulations provide that employees are to be given a "rest period" of not less than 10 minutes, on the employer's time, for each 4 hours of working time. (See WAC 296-126-092(4)), and those regulations, since May 20, 2003, apply to cities, towns, and counties. See RCW 49.12.005.
- May a city pay an employee severance pay if this is not provided in any employment contract or municipal personnel policy?
MRSC has consistently advised that a lump sum severance payment is permissible only if it is authorized pursuant to a previously adopted personnel policy or employment agreement or contract. Otherwise, such a payment would probably constitute an illegal gift of municipal funds.
If there is a bona fide dispute regarding the circumstances of the employee's discharge, then it is possible that "severance pay" could be justified as a compromise of a claim brought against the city. There would have to be facts sufficient to support that justification, however. A gratuitous payment, not made either in response to a contractual obligation or as a compromise of a claim, would most likely be classified as a gift and thus be contrary to Article VIII, Section 7 of the State Constitution. See generally Attorney General Opinion 63-64 No. 9.
- May the city grant a year-end bonus to an employee if it has not been provided for in a specific policy?
Bonuses to city employees, based on performance, may legally be given if the proper procedure is followed. It is a violation of the Washington State Constitution for a city to merely declare at the end of the year that a particular employee or class of employees will receive a year-end bonus if there has been no prior policy adopted by the city council establishing this as a compensation option.
However, if the city establishes in a policy or a clear written statement that a bonus for performance is a potential part of the compensation package, then a year-end bonus may be awarded if in fact the employee is evaluated as having performed at the agreed upon level. This policy does not have to be established at the beginning of the calendar year, but may be established later in the year.
- In a code city, can the salary of the city manager or city administrator be paid from both the general fund and a utility fund?
Yes, and some other administrative salaries can also be split. RCW 35A.33.122 provides as follows:
Whenever any code city apportions a percentage of the city manager's, administrator's, or supervisor's time, or the time of other management or general government staff, for administration, oversight, or supervision of a utility operated by the city, or to provide services to the utility, the utility budget may identify such services and budget for reimbursement of the city's current expense fund for the value of such services.
See also RCW 43.09.210.
- What overtime regulations apply to a city with a police chief and two full-time police officers?
The provisions of the federal Fair Labor Standards Act do not apply because the city employs less than five law enforcement officers. The overtime regulations of the Federal Fair Labor Standards Act only apply to municipalities which employ five or more officers in their police department (civilian reserve officers do not count towards this total). Since the city does not employ this many officers, there are no federal overtime regulations that must be met by the city.
However, the city still is covered by the state regulations that apply to overtime. These regulations are contained in the Washington State Minimum Wage Law, Ch. 49.46 RCW. This Act does contain mandatory provisions regarding overtime pay for most city employees, including police.
However, the police chief is not covered by the provisions in the state Minimum Wage Act. There is an exemption in RCW 49.46.010(5)(l) for:
Any individual who holds a public elective or appointive office of the state, any county, city, town, municipal corporation or quasi-municipal corporation, political subdivision, or any instrumentality thereof, or any employee of the state legislature.
It is clear that the city police chief is an appointive officer of the city and so is exempt from the mandatory overtime regulations in state law as well as federal law. It is a matter of city policy whether and when to grant overtime or compensatory time to the police chief.
The two regular police officers of the city are covered by the overtime laws. The city must pay overtime to these police officers when they exceed the number of hours set out in state law regarding overtime. For most city personnel, the overtime laws apply when the employee works over forty hours in a week. However, state law does give the city more flexibility with regard to overtime for police officers (and fire fighters) than it does for other city personnel. The city can balance police officer's hours over a work period that is longer than one week or seven days. The work period cannot be less than seven consecutive days or more than twenty-eight days. RCW 49.46.130(2) provides that if the work week is twenty-eight days, no overtime compensation is required until the hours worked exceed two hundred and forty hours. If the work period is more than seven days, but less than twenty-eight days, no overtime compensation is required until the ratio between the number of days in the work period and the hours worked exceed the ratio between the work period of twenty-eight days and two hundred and forty hours.
In essence, state law appears to allow a city to establish a seven-day work period with a sixty-hour work week for city police without being required to pay overtime compensation. Any hours worked in excess of sixty hours in a week must be compensated at an overtime rate not less than one and one-half times the regular rate of pay for the officer.