County Law Update

The New Overtime Rules

County Law Update

Starting Dec. 1, 2016, everybody who makes less than $47,476 per year, regardless of job duties, (that’s $913 per week, or $22.825 per hour) is eligible for overtime pay. $47,476 is the NEW MINIMUM. Revised FLSA Section 13(a)(1).

Elected Officials and “Personal” Staff: An elected official is NOT an FLSA employee and not entitled to overtime. Section 3(e)(2)(C) excludes from the definition of an FLSA “employee” a person “who (1) holds a public elective office of that State, political subdivision, or agency, (2) is selected by the holder of such an office to be a member of his personal staff, (3) is appointed by such an officeholder to serve on a policy making level, (4) is an immediate adviser to such an officeholder with respect to the constitutional or legal powers of his office, or (5) is an employee in the legislative branch or legislative body of that State, political subdivision, or agency and is not employed by the legislative library of such State, political subdivision, or agency.” The “personal” staff employees contemplated by these elected official personal staff exceptions are persons who actually function in the stead of the elected official – making the same kinds of unreviewable, subjective, policymaking decisions that the elected official makes. As a practical matter, these exceptions are the same as the “executive” and “administrative” exempt employee categories, below. This category would NOT likely include any county employees.

Non-Exempt Employee: A non-exempt employee is an employee who is entitled to overtime pay. Non-exempt employees are sometimes referred to as blue collar workers. FLSA Section 541.3(b), stated above, makes is clear that county employees who actually do the day to day county work (as opposed to managing the day-to-day workers) are non-exempt, blue collar workers who are eligible for overtime pay. By law, overtime exemptions specifically do not apply to police officers, fire fighters, paramedics, emergency medical technicians and similar public safety employees who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections for violations of law; performing surveillance; interviewing witnesses; interrogating and fingerprinting suspects; preparing investigative reports; and similar work. FLSA Section 541.3(b)

Exempt Employee: An exempt employee is an employee who is exempt from the overtime rules and NOT entitled to overtime pay. An exempt employee is any employee who is employed in a bona fide executive, administrative, professional, or computer employee capacity, as those words are defined by the FLSA. With the new $47,476 per year threshold, an exempt county employee is one who makes more than $47,476 per year AND is an “executive” or “administrative” or “professional” or “computer” employee. The “exempt” categories are summarized below. capacity employee is one whose : i) “whose primary duty consists of the management of the enterprise ... or a customarily recognized department or subdivision thereof; ”AND ii) “who customarily and regularly directs the work of 2 or more other employees therein; AND iii) “who has the authority to hire and fire ... ; AND iv) “who customarily and regularly exercises discretionary powers; AND v) MIKE RAINWATER who does not devote more than 20 Risk Management percent of his or her hours worked in Legal Counsel the work period to activities which are NOT directly and closely related to the performance of the work described in i), ii), iii) and iv) above. “Administrative” Employee Exemption: A bona fide administrative capacity employee is one: i) whose primary duty consists of the performance of office or nonmanual work directly related to management policies or general business operation, AND ii) whose primary duty consists of customarily and regularly exercising discretion and independent judgment, AND iii) who regularly and directly: a) assists a proprietor or another employee employed in a bona fide executive or administrative capacity or b) performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge or c) executes under only general supervision special assignments and tasks, AND iv) who does not devote more than 20 percent of his or her hours worked in the work period to activities which are NOT directly and closely related to the performance of the work described in i), ii), and iii) above. “Professional” Employee Exemption: As a practical matter, this category includes only members of the classic learned professions (such as scientists, artists, teachers, engineers, and the like). “Computer” Employee Exemption: The computer employee must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field performing the duties of application of systems analysis ... to determine hardware, software or system function specifications or designing developing, documenting, analyzing, creating, testing, or modifying computer systems or programs ... or ... machine operating systems.

Mike Rainwater, a regular contributor to County Lines and lead attorney for AAC Risk Management, is principal shareholder of Rainwater, Holt, and Sexton, P.A., a state-wide personal injury and disability law firm. Mr. Rainwater has been a lawyer for over 30 years, is a former deputy prosecuting attorney, and has defended city and county officials for over 25 years.