Overtime laws for government employees
Independent contractor protection under the FLSA
What employees can legally be denied FLSA overtime pay?
"White Collar" exemptions to the FLSA

Are the overtime laws different for government employees?

The application of the overtime laws to federal, state, and local government employees is, for the most part, the same as the application in the private sector. There are a few noteworthy differences, however.

Police and fire fighters are subject to a partial overtime exemption so that they are not entitled to FLSA overtime until after they have worked more hours than other employees.

The rules applicable to state and local government employees differ from those applicable to federal employees. To view the overtime laws applicable to federal employees click here.

The main differences between the application of the FLSA overtime laws in the private sector and in the government are as follows:

• The payment of compensatory time is permitted to government employees as long as there is an agreement before overtime work commences that compensatory time will be paid. The maximum amount of compensatory time that can be accrued is 240 hours for most government employees (480 hours for public safety workers). Employers can not compel employees to accept compensatory time as payment for overtime work;
• Employees can volunteer to work for their governmental employer to perform work that is not of the same type that the employee normally performs. For example, a fire fighter can volunteer to be a counselor at a youth facility. Moreover, (s)he cannot act as a volunteer fire fighter for her employer. Private citizens can volunteer for public employers.
• Governmental employees who are employed by the same public agency may, with their employer's approval, trade work shifts without affecting their overtime compensation.
• Training time that is required by a higher governmental authority — such as a state requiring a city to train its employees — does not have to count as work time.

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Are independent contractors entitled to protection under the FLSA?

Independent contractors are not, of course, entitled to FLSA overtime pay.

People who work as employees are entitled to greater legal protections and monetary benefits than independent contractors. Of course, in theory, independent contractors are free from the set work time, discipline and other restrictions that govern employees' conduct.

There is much less regulation involved for employers if they treat their workers as "independent contractors" rather than "employees." Employees have many more legal rights: The right to overtime pay, to unionize, to social security credits, protection against discrimination (age, race, sex, disability, national origin, etc.), unemployment insurance and a multitude of other benefits. Independent contractors primarily only have the right to be paid pursuant to their contract with the employer.

The Tests to Determine Status as Employee or Independent Contractor

Classifying certain workers as employees or independent contractors can be difficult. Currently, there are essentially two tests used to determine whether or not a worker is an independent contractor or employee. The Internal Revenue Service applies the "right to control test." Under the Fair Labor Standards Act (FLSA) and other statutes the courts have applied the "economic reality test."

(1). Right to Control Test (also called the Master-Servant or common law agency test):

This test distinguishes independent contractors from employees based on the degree to which an employer exercises control over the worker. The control factors that are considered include:

(A) What is the degree of control the employer exercises over the day-to-day work performed?

(B) Is the worker engaged in a business or occupation that is distinct from the employer?

(C) Is the occupation a specialist job or one usually performed under supervisor?

(D) What is the degree of skill involved in the job?

(E) Does the employer or the worker supply the tools and equipment necessary to perform the job?

(F) How long is the worker employed by this employer?

(G) Is the work performed part of the regular business of the employer?

(H) Does the worker perform the same type of work for other business entities?

(I) Do the parties believe they are creating an employer/employee relationship business?

(J) How is the worker paid for his work – by the job or project or by the hour or salary?

(2) Economic Reality Test

This test is somewhat broader than the control test and it classifies greater numbers of workers as employees. Courts and the Department of Labor look to the "economic realities as a whole" to determine how to classify a worker. Generally, there are seven factors viewed under this test:

(A) Amount of the worker's investment in facilities and work equipment;

(B) The nature and degree of control retained or exercised by the company over the worker's work;

(C) Worker's opportunities for profit and loss;

(D) The degree to which the worker's independent initiative, judgment and planning in market competition with others is necessary for the success of the worker's operation;

(E) Degree of the permanency of the relationship between the employer and the worker;

(F) The extent to which the services are a part of the employer's business;

(G) How dependent is the worker on the employer for continued work?

(3) Hybrid test

Some courts apply a hybrid test combining the control test and the economic realities test. This is often done in interpreting the law under the Age Discrimination in Employment Act (ADEA) and the federal Civil Rights Act of 1964, as amended in 1991. The hybrid approach includes the factors under the right of control test, but also includes such factors as :

(A) The type of occupation;

(B) The skill required;

(C) Whether the worker is furnished with equipment;

(D) How long the worker has been employed by the employer;

(E) Whether paid leave is provided;

(F) How the employee is paid; and

(G) How the work relationship was terminated.

In determining how to classify an employee the courts view the purpose and nature of the law (or laws) at issue. The failure to consider a worker as an employee can result in a great diminishment of a person's employment protections and benefits. Thus in close cases, courts often decide in favor of finding an employee/employer relationship rather than independent contractor status.

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What categories of employees can legally be denied FLSA overtime pay?

The FLSA has a number of categories of employees who are exempt from the overtime laws. In some cases, however, state laws cover the employees who are exempt from the FLSA. In addition, exemptions are applied on a workweek basis. Employees who perform non-exempt duties in a workweek typically are not exempt that week and are entitled to FLSA overtime compensation for overtime hours worked that week - regardless of their FLSA status the rest of the year.

GENERAL PRINCIPLES

There are a few well-established principles regarding exemptions to the Act.

• Employees are presumed to be entitled to overtime pay;
• The employer bears the burden of proving that an employee fits within a claimed exemption;
• Job duties, not job titles govern whether an exemption applies. Employers often give employees fancy administrative or professional sounding job titles for purposes of exempting them from overtime pay. Legally, this does not work. In determining whether or not an exemption to overtime pay applies, an employee's actual job duties must be evaluated;
• Lastly, the exemptions to the overtime exemptions are narrowly construed against the employer and if there is a reasonable doubt as to whether an exemption applies, the employee is supposed to receive overtime compensation.

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What are the so-called "white collar" exemptions to the FLSA?

These are the administrative, professional and executive exemptions. They are misnamed the "white collar" exemptions because in today's economy many office workers are covered by the overtime laws.

These are the most commonly misapplied exemptions. Many employers and employees mistakenly believe that if an employee is salaried, then regardless of what the employee does, he or she qualifies as an administrative or professional employee. This is wrong. To qualify as an administrative, executive or professional employee, an employer must prove both that an employee is paid on a salaried basis and that the employee performs the duties of the claimed exemption. This means that no workers paid on an hourly basis can be excluded from receiving overtime pay on the basis that they are an administrative, professional or executive employee. Many employees, however, who are paid on a salaried basis are entitled to overtime compensation because they do not perform the duties of an administrative, executive or professional employee.

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