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MRSC Index A topical index to MRSC's information resources.

Personnel: PE 7

Expand Section Electronic Documents (46 Results)

  1. Performance evaluation form, prepared by Don Morrison
    Article


  2. Performance evaluation form
    Article


  3. Performance Management and Performance Pay, by Don Morrison
    Article


  4. To Successfully Tie Pay to Performance...prepared by Don Morrison
    Article | Document Date: nd


  5. FLSA Nuts and Bolts: Overtime Overview for Washington Municipal Employers, by Charles N. Eberhardt. Washington State Association of Municipal Attorneys (WSAMA), 1996 Annual Spring Conference
    Article | Document Date: 05/1996


  6. Containing Health Care Costs: Proven Strategies for Success in the Public Sector, Government Finance Officers Association; identifies the most innovative and effective strategies local governments can employ to meet the dual goals of containing costs and managing the quality of employee health-care benefits
    Article | Document Date: 11/2011


  7. Overview of the appropriate managing and reporting volunteer compensation for fire protection districts and regional fire authorities. Snure Law Office
    Article | Document Date: 1/09


  8. Pay for performance form for management/professional employees
    Municipal Form
    Jurisdiction: Snoqualmie

  9. Declaration of domestic partnership - City and county of San Francisco
    Municipal Form | Document Date: nd
    Jurisdiction: Out-of-State

  10. Affidavit of marriage/domestic partnership - Association of Washington Cities
    Municipal Form | Document Date: nd
    Jurisdiction: AWC

  11. Petty cash reimbursement claim for expenses form, travel authorization and reimbursement
    Municipal Form | Document Date: 1/04
    Jurisdiction: Tumwater

  12. Ordinance No. 1808-13 - Authorizes the use of a city vehicle as a fringe benefit for the mayor
    Ordinance | Document Date: 01/2013
    Jurisdiction: Milton

  13. Ordinance No. 2658 - Creates a new fund entitled Medical Self Insurance Fund which shall be utilized for self-funded medical plan for current employees, LEOFF I eligible employees and employees eligible for COBRA
    Ordinance | Document Date: 12/2012
    Jurisdiction: Issaquah

  14. Attorney General informal opinion by James K. Pharris re severance pay to an appointed city officer or employee
    Other Gov Doc | Document Date: 3/04
    Jurisdiction: Washington State

  15. Pay-for-performance plan
    Other Gov Doc | Document Date: 2004
    Mercer Island

  16. Memo from human resources administrator re: waiver of benefits for employees with family members who have "double coverage"
    Other Gov Doc | Document Date: 6/5/02
    Jurisdiction: Anacortes

  17. Compensation policy - guiding compensation programs for employees of the city
    Policy/Procedure | Document Date: 06/2013
    Jurisdiction: Tukwila

  18. Travel and training policies
    Policy/Procedure | Document Date: 02/2012
    Jurisdiction: Sultan

  19. Rules and regulations for obtaining travel authorization, advance of travel funds, and reimbursement of expenses
    Policy/Procedure | Document Date: 07/2011
    Jurisdiction: Sequim

  20. Rules and regulations for obtaining travel authorization, advance of travel funds, and reimbursement of expenses
    Policy/Procedure | Document Date: 06/2001
    Jurisdiction: Liberty Lake

  21. City council expense and reimbursement policy
    Policy/Procedure | Document Date: 03/2012
    Jurisdiction: SeaTac

  22. Wellness policies and program
    Policy/Procedure | Document Date: 12/10
    Jurisdiction: Union Gap

  23. Master Employee Program (MEP) merit pay
    Policy/Procedure | Document Date: 11/06
    Jurisdiction: Sammamish

  24. Travel claims policy - Southwest Clean Air Agency
    Policy/Procedure | Document Date: 5/10
    Jurisdiction: Air Pollution Control Authority

  25. Travel and lodging expense reimbursement policy - Southwest Clean Air Agency
    Policy/Procedure | Document Date: 11/09
    Jurisdiction: Air Pollution Control Authority

  26. Wellness incentive program
    Policy/Procedure | Document Date: 3/09
    Jurisdiction: Mercer Island

  27. Travel policies: Travel Expenses While on City Business; Policy Guidelines for City Travel Card Usage; Council Travel Guidelines
    Policy/Procedure | Document Date: 5/04
    Jurisdiction: Tukwila

  28. Policies and procedures related to obtaining travel authorization, advance travel funds, and expenditure or reimbursement for business travel expenses
    Policy/Procedure | Document Date: 6/08
    Jurisdiction: Mukilteo

  29. Meals with meetings policy and procedures
    Policy/Procedure | Document Date: 6/08
    Jurisdiction: Mukilteo

  30. Travel reimbursement policy
    Policy/Procedure | Document Date: 02/2007
    Jurisdiction: Lakewood

  31. Travel and training policies and procedures for all employees and public officials
    Policy/Procedure | Document Date: 7/99
    Jurisdiction: Snoqualmie

  32. Worker's Compensation Buy Back Program; employee leave buy back program for employee’s receiving time-loss payments from Washington State Department of Labor & Industries
    Policy/Procedure | Document Date: 05/05
    Jurisdiction: Algona

  33. Establishes policy and procedure related to travel and reimbursement for eligible expenses incurred in conduct of city business, including advance travel funds
    Policy/Procedure | Document Date: 02/05
    Jurisdiction: Lacey

  34. Rules and procedures related to processing workers' compensation claim
    Policy/Procedure | Document Date: 6/99
    Jurisdiction: Monroe

  35. Travel expense reimbursement policy and procedure
    Policy/Procedure | Document Date: 6/09
    Jurisdiction: Shelton

  36. Employee expenses and reimbursements
    Policy/Procedure | Document Date: 03/2011
    Jurisdiction: Poulsbo

  37. Travel reimbursement policy
    Policy/Procedure | Document Date: 01/2010
    Jurisdiction: Kittitas County

  38. Guidelines for eligibility and payment of expenditures for meals, snacks and incidental expenses not related to out-of-town business travel or employee recognition activites
    Policy/Procedure | Document Date: 7/03
    Jurisdiction: Bellingham

  39. Policy for the reimbursement of travel, subsistence and related expenses, incurred by city employees while conducting city business
    Policy/Procedure | Document Date: 1/03
    Jurisdiction: Bellingham

  40. Merit increases
    Policy/Procedure | Document Date: 8/02
    Bellevue

  41. Resolution No. 251 - Updates the travel and other expenses section of the personnel manual
    Policy/Procedure | Document Date: 5/02
    Jurisdiction: Wilbur

  42. Policy and procedure related to obtaining travel authorization, advance travel funds, and expenditure or reimbursement authorization for expenses incurred in conduct of business of the city
    Policy/Procedure | Document Date: 12/06
    Jurisdiction: Tumwater

  43. Request for qualifications for health insurance broker agent (Hamblen County, TN)
    RFP | Document Date: 10/09
    Jurisdiction: Out-of-State

  44. Professional services solicitation for health insurance broker (Howell, NJ)
    RFP | Document Date: 1/10
    Jurisdiction: Out-of-State

  45. Request for proposal for medical insurance brokerage services
    RFP | Document Date: 12/08
    Jurisdiction: Mount Vernon

  46. Request for proposal for insurance broker/consultant services to assist with on-going assessment and analysis of WTA’s health and welfare benefit programs and alternatives to existing plan designs and carriers, Whatcom Transportation Authority
    RFP | Document Date: 4/07
    Jurisdiction: Public Transportation Authority

Expand Section Featured Inquiries (44 Results)

  1. Where a city has 12 full-time employees and wishes to hire a part-time, 20-hour per week employee, does the city have to provide benefits (medical and others) for that part-time employee? Is this analysis impacted at all by the Affordable Care Act?

    No. The city is not required to provide any particular benefits to its employees, and when it does provide benefits, the city may distinguish between full- and part-time employees, providing benefits to the former but not the latter.

    A city with fewer than 50 full-time employees is not impacted by the Affordable Care Act (ACA). Only "large" employers (those who have more than 50 full-time employees) are subject to the ACA's "employer mandate," requiring those employers to provide health coverage to their full-time employees. Full-time employees are defined as those who work an average of 30 hours per week. So, employers who have less than 50 full-time employees are under no obligation to provide health coverage.

     



  2. Is cash offered to an employee in place of a health care plan considered to be "reportable compensation”?

    Yes. This conclusion is based on WAC 415-108-455, which provides in part:

    Compensation received in any form under the provisions of a "cafeteria plan," "flexible benefits plan," or similar arrangement pursuant to section 125 of the United States Internal Revenue Code is reportable compensation if the employee has an absolute right to receive cash or deferred cash payments in lieu of the fringe benefits offered.

    This means that for cash or deferred cash payments in lieu of fringe benefits, there must be federal withholding for income tax, social security, and so on.



  3. Is cash offered to an employee in place of a health care plan considered to be "reportable compensation”?

    Yes. This conclusion is based on WAC 415-108-455, which provides in part:

    Compensation received in any form under the provisions of a "cafeteria plan," "flexible benefits plan," or similar arrangement pursuant to section 125 of the United States Internal Revenue Code is reportable compensation if the employee has an absolute right to receive cash or deferred cash payments in lieu of the fringe benefits offered.

    This means that for cash or deferred cash payments in lieu of fringe benefits, there must be federal withholding for income tax, social security, and so on.



  4. What is MRSC's position as to whether elected officials are covered by workers' compensation?

    It is MRSC's position that elected officials are covered by workers' compensation/industrial insurance. There is no exemption for elected officials in RCW 51.12.020 ("Employments excluded"). Also, note the definition of "employee" in RCW 51.08.185:

    "Employee" shall have the same meaning as "worker" when the context would so indicate, and shall include all officers of the state, state agencies, counties, municipal corporations, or other public corporations, or political subdivisions.

    (Emphasis added.)

    The Washington State Department of Labor & Industries considers elected officials to be covered, as there is a workers' compensation classification (5305) in WAC 296-17A-5305 for "clerical office, administrative employees, and elected officials of cities and towns."



  5. Is it allowable for a public employee to leave a tip at a restaurant and be reimbursed by their local government employer? If so, what is the percent limit?

    Yes, it is allowable for a public employee to leave a tip at a restaurant and be reimbursed for that expense, assuming of course that the meal is a part of official business. There is not a strict limit on the amount of the tip, but clearly a tip of 15 or even 20 percent would be considered to be reasonable.

    In Bellevue v. State, 92 Wn.2d 717 (1979), the state supreme court upheld a city of Bellevue policy of reimbursement for restaurant tips while on city business. The court held that this does not involve a gift of city funds. Restaurant tips are an established custom and practice and are considered a basic part of the compensation paid to restaurant employees. 92 Wn.2d at 720.

    The same reasoning should apply to other situations where tips are customary and expected (e.g., taxi rides, bellhop service). Thus, a local government should be able to reimburse employees for such tipping incurred in the course of public business. The local government should provide in their travel reimbursement policy that reimbursement for tips will be permitted and what the percentage limit will be.



  6. May a full-time city employee in the public works department volunteer for the civilian police reserve?

    Yes, a full-time employee in the public works department may volunteer for the civilian police reserve. This question potentially implicates the Federal Fair Labor Standards Act (FLSA). The basic rule is this: an employee cannot volunteer to provide the same type of services he or she is employed to perform for that same agency without losing his or her volunteer status and triggering the protections of the FLSA. So for example a full-time fire fighter cannot volunteer to work as a volunteer firefighter for the same agency.

    However, that does not seem to be a problem here. The person works for the public works department and so performs entirely different services from that performed by a reserve police officer. He/she should be able to serve as a true volunteer in the police reserve in the same city without raising FLSA issues.



  7. 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:



  8. 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.



  9. 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.

  10. 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.



  11. 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.



  12. 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.



  13. Is there an established acceptable percentage level for salaries relative to the total general fund budget?
    There is no established "acceptable" percentage. Cities don't budget saying, "We'll spend x percent of the general fund on salaries/wages and benefits and the rest on everything else." Rather, the mayor proposes and the council adopts a budget that provides the services that reflect their view of the city's goals and priorities. In this budget there will be a certain amount of expenditures for salaries, wages, and benefits (labor costs). If "a lot" is being spent on labor costs, then there will be less to spend on such things as supplies and equipment. Maybe there will not be funds to do street repairs or some other project that the citizens want. The citizens may, if they disagree with this, vote for a different mayor and council that will reallocate resources.

    The figure found in the Local Government Financial Reporting System on the State Auditor's Web site for the 2002-2004 general fund expenditures of all cities in Washington for salaries, wages, and benefits (labor costs) as a percent of general fund total expenditures comes to about 68 percent. This number mainly reflects the expenditures of the bigger cities since their budgets are so large they overwhelm those of smaller cities.

    When we look at smaller cities by themselves, we find that the labor cost component of the general fund is usually much lower than the 68 percent reported for all cities. For example, for 2002-2004, in Washington cities with a population of between 500 and 1500, labor cost expenditures were actually closer to 45 percent of the general fund.

    All these figures do is tell you what the average percentage is. If your city is much higher than the average, it is not necessarily a bad thing. By the same token, if your city is much lower than the average, it is not necessarily a good thing. There could by many good reasons for both situations. The most important question is whether the amounts that you are spending on labor costs make sense and can be justified in light of the particular service demands and preferences in your community.



  14. Payroll Taxes - Are monetary awards, given under an employee recognition program, subject to payroll taxes?
    Yes, any cash award is taxable to the employee as a wage and is subject to payroll taxes and withholding. Cash equivalents, such as savings bonds and gift certificates are also taxable. See discussion set out beginning at page 65 in the Internal Revenue Service publication, Taxable Fringe Benefit Guide, January 2013. The fair market value of non-cash awards and prizes may also be taxable.

  15. 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.



  16. 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.



  17. 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.



  18. 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.

  19. 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.

  20. 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.

  21. 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.

  22. 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.



  23. 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.

  24. 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.

  25. 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.  (However, if a local policy provided for overtime over 8 hours work in a day, that policy would need to be followed.)

  26. 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.

  27. 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.

  28. 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.

  29. 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).



  30. 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.



  31. 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.

  32. 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.

  33. 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.

  34. 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.

  35. 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.

  36. 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.



  37. 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.



  38. 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.



  39. 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:
    1. The employee is absent from work for one or more full days for personal reasons, other than sickness or disability;
    2. 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;
    3. The city imposes, in good faith, unpaid disciplinary suspensions of one or more full days for infractions of certain workplace conduct rules;
    4. The city imposes penalties in good faith for infractions of safety rules of major significance;
    5. The employee takes leave under the Family and Medical Leave Act (FMLA); or
    6. 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).



  40. 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.



  41. Must local governments provide benefits to domestic partners?

    No, but see the next paragraph.. For the most part, local governments are not required to provide benefits, such as health, dental and vision insurance, to their employees. But, if such benefits are supplied, there is no requirement that they include coverage for an employee's spouse or dependent children. Whether and to what extent benefits will be provided is an issue of policy for the governing body to determine. A fairly typical situation, but certainly not the only one, is for the city, town, county or special district to pay for all or part of the cost of health-related insurance costs for its employees, and oftentimes for the employees' spouses and children.

    In 2009, a bill providing for “everything but marriage” (chapter 521, Laws of 2009, SB 5688) was passed and, after a referendum, approved by the voters. This legislation provided for, among other things, enhanced rights for same-sex couples, who registered as domestic partners, including the right to make hospital visitations, the ability to authorize autopsies and organ donations, and establishing inheritance rights for same sex couples when there is no will. It required that registered domestic partners be treated the same as married spouses under state law. As result of the 2009 legislation, employers who extend health-related benefits to married couples must also provide such benefits to registered domestic partners. Before the 2009 legislation, state supreme court upheld Vancouver's extension of benefits to domestic partners in Heinsma v. City of Vancouver, 144 Wn. 2d 556 (2001).



  42. 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(19)(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.

  43. 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.



  44. 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.



Expand Section WSAMA Conference Proceedings (12 Results)

  1. Defending Workmen's Compensation Cases for the Self-Insured Employer, by Patricia Bosmans, Assistant City Attorney of Tacoma. Legal Notes No. 446, Spring 1987
    Document Date: 6/19/1987


  2. Self-Insuring Workers Compensation, by Katie Cederburg, Manager, Workers Compensation Claims Division, The James L. Groves Co., Everett. Legal Notes No. 437
    Document Date: 11/9/1985


  3. FLSA Nuts and Bolts: Overtime Overview for Washington Municipal Employers, by Charles N. Eberhardt, Perkins Coie, Seattle. Legal Notes No. 494, Spring 1996
    Document Date: 5/10/1996


  4. Providing Benefits to Registered Domestic Partners of Employees, by Ross Farr, Ogden Murphy Wallace. Legal Notes No. 531, Fall 2008
    Document Date: 10/17/2008


  5. What to Do When Employees Are Injured or Disabled: The Conflicting Demands of the Americans With Disabilities Act, the Family Medical Leave Act, and the Workers' Compensation Laws, prepared by Bruce E. Heller and Peter M. Ruffatto. Legal Notes No. 491, Fall 1995
    Document Date: 10/13/1995


  6. Overview of FLSA, Garcia Case and Subsequent Legislative Action, by Jerry F. King, City Attorney of Vancouver. Legal Notes No. 437, Fall 1985
    Document Date: 11/9/1985


  7. Application of the Fair Labor Standards Act to Employees of State and Local Governments, by Wilbur J. Olson, Assistant Regional Administrator, U.S. Department of Labor, Wage and Hour Division. Legla Notes No. 437, Fall 1985
    Document Date: 11/9/1985


  8. Practical Problems and Solutions Under the Fair Labor Standards Act: Overtime and Other Issues, by Michael T. Reynvaan, Attorney, Perkins Coie. Legal Notes No. 473
    Document Date: 6/21/1991


  9. Personnel Update: Volunteers under FLSA; Privacy in the Workplace; and Accommodation of Disabled Employees, by W. Scott Snyder, Attorney, Ogden, Ogden, Murphy & Wallace, Seattle. Legal Notes No. 446, Spring 1987
    Document Date: 6/19/1987


  10. COBRA Amendments of 1986 -- Required Continuation of Group Health Plans for Municipal Employees, by W. Scott Snyder. Legal Notes No. 444, Fall 1986
    Document Date: 10/15/1986


  11. Auditing Your Fair Labor Standards Act Obligations, by W. Scott Snyder, Attorney, Ogden, Ogden & Murphy, Seattle. Legal Notes No. 435, Spring 1985
    Document Date: 6/21/1985


  12. Fair Labor Standards Act Update, by Chris Thomas, Seattle Assistant City Attorney. Legal Notes No. 518, Spring 2004
    Document Date: 5/14/2004

Expand Section Subject Pages (5 Results)

  1. Merit Pay
    Information for Washington cities and counites on merit pay
  2. Travel Expense Reimbursement
    Information for Washington cities and counties on reimbursement of travel expenses
  3. Fair Labor Standards Act
    Provides information about the requirements of the FLSA and what cities must do to comply with its requirements
  4. Minimum Wage
    Information about Minimum Wage in Washington
  5. Health Benefits for Dependents
    Information about providing the same health, dental and vision insurance coverage for same sex couples

Need more information?

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