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.

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.

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."

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.

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.

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:

• FLSA 2006-28
• FLSA 2007-3NA
  

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.

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.

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.

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.

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.

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.

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.

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.

The overtime rules for police officers and firefighters are different. For more information on this subject, see our Fair Labor Standards Act page.

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.

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).

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.

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.

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.

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.

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).

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.

• Olympia
• Anacortes
• Bellevue
• Burien
• Des Moines
• Edmonds
• Spokane
• Seattle
• Tumwater
• Vancouver
• Redmond
• Tacoma
• King County
• Pierce County

See also:

• Benefits for Domestic Partners - MRSC Webpage 
• Domestic Partnerships: List of Cities, States and Counties - American Civil Liberties Union (includes list of government employers offering domestic partnership benefits)

"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.

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.