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City official calls for FLSA salary test fix.

Councilmember Linda Horowitz of Vancouver, Wash., representing NLC, urged the House Subcommittee on Labor Standards to enact legislation amending the Fair Labor Standards Act (FLSA) in order to stop "a loss of partnership, a loss of dollars and to reduce divisiveness."

State and local governments and their taxpayers have millions of dollars at risk if courts nationally follow the lead of courts in the Western United States in ruling that a whole variety of common public sector pay and personal practices make municipal management, supervisory and professional employees eligible for overtime pay.

Among the practices that courts have ruled make such management employees" not-salaried" and thus eligible for overtime are: requirements that such employees work a prescribed schedule, that they maintain a record of the hours they work, that a computerized payroll system computes their pay by multiplying hours time a rate of pay or that an employee is required to get a superior's permission to leave the worksite.

Horowitz, in her testimony las week, gave an example of why accountability is particularly important in the public sector. She cited an example of having a colleague observe a city employee walk by a restaurant where they were eating and remark "It must be nice to have a job like that," indicating a suspicion of non performance. Later Horowitz was able to obtain records (which appear to be precluded under the court's rulings) indicating the legitimacy of the city employee's absence from the office.

In her written testimony Horowitz urged that the subcommittee use their hearing to begin a process," involving the Congress, U.S. Labor Department, administration, public employers and public employees to work out issues and provide clarity to the law as it applies to public sector employers."

Horowitz also argued that current FLSA restrictions on city employees volunteering to work and be involved in community activities really inhibits the creation of community spirit and divides city supervisory and line employees and the community.

Among the issues Horowitz argued should be included in such a review in addition to critical retroactive relief from the salary basis test are the treatment of city employees who volunteer time at public events, the 7 (k) exemption for public safety employees, on-call status and take home vehicles.

Hearing Called to Examine Salary Basis Test Issues

The House Subcommittee chaired by Representative Austin Murphy (D-Pa.) called the hearing specifically to examine "the application of the overtime provisions of the Fair Labor standards Act to certain employees of state and local governments in the wake of recent judicial rulings in the 9th Circuit Court of Appeals."

These court decisions have ruled that the variety of pay and personnel practices make management employees" not salaried" and therefored entitled to time and one-half overtime pay.

In testimony for the Labor Department Acting Wage and Hour Administrator Karen R. Keesling said, "At this time, however, based on the information currently available to the Department, we do not believe there is adequate foundation to justify further legislatively mandated regulatory changes which would distinguish the rules applicable to the public sector from those long established for private sector employment.

"Though more needs to be done in this area, the most important pending matter is enactment of the legislation required to allow resolution of back pay liabilities retroactively and we urge the Congress to take prompt action to move favorably on this legislation."

Chairman Murphy said at one point in discussing the issue with the panel of public employers "I understand you got caught off-guard". At another point in the hearing however he said "the Fair Labor Standards Act is to promote added employment and not to allow you to work other workers longer without overtime pay." The Chairman went on to say that employers can't just classify workers as management to avoid overtime pay requirements. "They cant be management if you treat them like hirelings for an absence on Wednesday afternoon."

In discussing time reporting regulations Chairman Murphy said "that (time)card alone is a violation" if used "you're going to have to say they're under FLSA." In response Peter Sherwood, Corporation Counsel for the City of New York commented that it seems strange that discipline and accountability rules in place to show that someone is not "a no-show" government worker are the basis of stripping away the overtime exemption.

Chairman Murphy proposed considering a concept under which individuals might be considered exempt up to the date of the Abshire decision (the most publicized public sector salary basis test court case) if the employee earned over $50 or $60 thousand dollars, met the duties test and had traditionally been management. Councilmember Horowitz responded that figure would be considered high in her community and that if this approach were contemplated some salary level more tied to the local labor market should be considered.

Leon Williams County Supervisor in San Diego County, California said that without relief from these overly restrictive regulations and legal decisions the County "will have fewer resources to compensate and less ability to retain employees" he went on to cite a potential $23 million exposure for the county.

Joseph M. Bress, Director of the Governor's office of Employee Relations in New York State speaking on behalf of the National Governor's Association cited the inappropriateness of the salary basis test to public sector employment and for support cited the fact that in its enforcement of FLSA for federal government employees the office of personnel Management does not use a salary basis test.

The International Association of Firefighters in their testimony opposed "the elimination of the docking test and salaried basis test either through regulatins or legislation." going on to say that "public employers exaggerated claims of exposure to liability as a result of the Ninth Circuit's decision in Abshire we speculative and unfounded."

T. Michael Kerr, representing the American Federation of State Local and Municipal Employees, said that "The salary basis tests work. It is a useful proxy for the duty tests, one that has stood the test of time in the private service sector, a sector that shares many characteristics of the public service sector.

"Those few (employers) who refuse after all these years to come into compliance out of some misplaced hope that between Cogress and the Department of Labor they can get FLSA coverage repealed in the public sector should pay the price for their intransigence."

Senate panel okays measure to subject local and state employees to OSHA regs

On a 10 to 6 vote the Senate Labor Committee passed $1622, which among a number of other things, would place state and local government employees under the Occupational Safety and Health Act (OSHA). Senator Dave Durenberger (R-Minn.) voted "present' on the legislation.

Currently city, town and other public employees are only covered by OSHA indirectly--if their state government has a federally approved OSHA plan. In about half the states the federal government enforces the OSHA legislation directly and there is no coverage of state and local government employees in these states. This situation would be changed under the proposed legislation.

In addition to the coverage of state and local employees the legislation would require employers to establish joint management-labor safety committees and maintain records of the deliberations of these groups. In addition the bill would increase the level of fines and other sanctions which would be imposed on employers violating OSHA standards.

The House had earlier this year passed similar legislation but no floor consideration of the bill has occurred in the House. The White house had earlier vowed to veto the House version because of costs imposed on employers.
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Title Annotation:Linda Horowitz, Fair Labor Standards Act
Author:Peterson, Doug
Publication:Nation's Cities Weekly
Date:Sep 21, 1992
Words:1264
Previous Article:Working with the public: listening more is not listening better.
Next Article:Ohio league meeting explores new agenda for cities.
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