XIV. Personnel and Records

Parenthetical numbers in the text refer to sections of the current Revised Statutes of Missouri, abbreviated as RSMo.

Cities are employers

Many cities do not think of themselves as employers requiring personnel policies — most have few employees and somewhat informal work arrangements. However, even a city with just a single employee must have an employer ID number, withhold income and social security taxes from wages and pay state unemployment insurance. As a result, cities should formulate and adopt comprehensive personnel policies. These policies should be adopted by the board, but do not need to be in the form of an ordinance.

Cities are public employers

Cities are public employers under the Fair Labor Standards Act (FLSA) and must keep certain records. Every employee (even if they are few in number) must have a workweek on record. They must agree to accept compensatory (comp) time off in lieu of overtime pay or it must be a condition of employment when hired (unless the city chooses to pay overtime in wages). Any time hours worked during the workweek exceed 40, employees must be compensated time and one-half in compensatory time or in wages. Most public employers use comp time instead of wages.

Wage hourly equivalent

Regardless of how one is paid, every employee must have an hourly equivalent wage on record. This is the figure used for calculating overtime rates. If the employee is paid on a basis other than hourly, the equivalent is calculated by dividing the annual salary by total hours worked in one year.

Allowable maximum

An employee may not accumulate more than 240 hours of comp time. Should an employee hit that mark, all additional overtime must be paid in cash at 1.5 times the employee's hourly wage. For example, 240 hours of compensatory time represents 160 hours of overtime work.

Separation of employee

When an employee quits, retires, passes away or is fired or laid-off, all recorded comp time must be paid in cash. The rate of pay should be equal to the employee's final rate or the highest rate over the three years prior to separation — whichever is a higher rate. Accrued compensatory time is a city liability, so timesheets need to report comp time earned in each period as a matter of record beyond just the employee's own record.

Taking compensatory time

Once comp time is earned, it's the property of the employee and may be taken when the employee desires (within what is reasonable). Under a U.S. Supreme Court ruling in 2000, an employer may require an employee to use accrued compensatory time.

Other common benefits

The FLSA doesn't address holidays, vacation, Sundays, sick leave or any other common employee benefits. It's a city's decision to offer these benefits.

On-call time

City employees are often on-call. Whether or not to pay an on-call employee for hours not actually at work depends on time. For example, if employees are expected to show up within 10 minutes of being called, the court usually decides (under the FLSA) that they should be paid for every hour that they are on-call.

Declining overtime hours

An employee may not decline overtime hours. It may be worth remembering that the original FLSA (passed in 1937) was intended to create more jobs and reduce the number of unemployed by replacing the 60-hour workweek with a 40-hour workweek. The FLSA was not passed to advocate for workers.

Investigations of violations

If an employee makes a complaint, the Department of Labor will launch an investigation. It often finds violations — and nearly always in record keeping. The department can assess penalties two years prior to the date that the complaint was filed or three years if the employer purposely tried to dodge the law. Penalties can also be doubled. This is a risk not worth taking. Keep overtime records.

Another reason to keep impeccable records: An investigation of possible violations will examine the work records of every employee, even those the city counts as exempt from coverage, and not only the employee who filed a complaint.

Volunteering

Generally, an employee cannot volunteer to do the same work for which he or she is paid. While a city employee may volunteer to do work for a county, volunteering for the city equates to hours that must be paid. This would probably hold true even if an office secretary volunteered to read water meters.

Exemptions

Three classes of employees are exempt from overtime and minimum wage coverage: executive, administrative and professional workers. Each class is tightly defined. Executive must have the authority to hire and fire employees, make management decisions and supervise at least two workers. Weekly salary must be at least $455. Administrative must require at least 80 percent of work time at a desk, do administrative tasks and exercise independent judgment. Weekly salary must be at least $455. Professional must have completed a recognized program of training (usually a master's degree), meet the pay criteria and exercise independent judgment.

Exempt employees must be paid on a salary basis and are not subject to docked pay, except for dangerous safety violations, regardless of hours worked. It's risky to pay overtime to an exempt employee because it may appear that the employee is hourly rather than salaried.

The small police department exemption

If fewer than five officers have the power of arrest, police officers can be completely exempt from the law's overtime requirements. Minimum wage still applies, but not the time and one-half rules. The five-count includes the elected marshal if there is one.

The optional work period

Under the Fair Labor Standards Act (Section 207 (k)), law enforcement personnel that have the power of arrest can have a schedule that allows more hours worked before overtime pay begins. At the city's option, officers can work 28-day schedules, with time and one-half beginning when worked hours exceed 171. This means that overtime begins when an officer works more than 42.75 hours in a week.

The work period and the pay period do not have to coincide. Using the 28-day/171-hour schedule translates into 13 work periods every 12 months. Employees on this schedule may accumulate 480 hours of compensatory time before overtime hours worked must be paid in cash. This represents 320 hours of overtime work. Most public safety employees get the 480 hours regardless of basis.