Rules for Missouri Ambulance Districts
XIII. Federal Fair Labor Standards Act
The federal Fair Labor Standards Act (FLSA) was enacted in 1934, during the Great Depression. Its original purpose was to spread available work among more individuals. In 1978, the law was applied to local governments because of a U.S. Supreme Court decision. Congress then modi?ed the law to accommodate some dfferent employment practices in the public sector. As the law now reads, it applies to organizations that have five or more employees who work either full time or part time. (For example, if an AD employs a halftime paid EMS chief, a halftime paid secretary and a quarter-time paid bookkeeper, it is considered to have three employees.) In other words, each person counts as an employee, regardless of the number of hours he or she works.
The law has rules that can apply to public entities, including ADs. AD boards with paid EMTs and paramedics should retain a competent attorney who has a thorough understanding of employment law. Doing so might prevent a lot of troubles, penalties and/or back wages.
Volunteers are not directly covered by the FLSA. Thus, an AD’s rules covering these workers can generally be anything that is reasonable. As discussed in Chapter XII. Personnel, volunteers can receive some compensation for their labors, provided it doesn’t exceed 20% of the rate for paid EMTs and paramedics in the locality.
Generally, an employee cannot volunteer for the same work for which he or she is paid. An AD employee could volunteer to do work for a city or a county, but time spent volunteering for the AD would be hours worked and would have to be paid. This would probably hold true even in a case such as an AD office secretary who volunteers to go on a medical call.
Hourly equivalent wage
Regardless of how they are paid, every employee must have, on record, an hourly equivalent wage, which is the ?gure used for calculating overtime rates. If an employee is paid on an other-than-hourly basis, the equivalent ?gure is calculated by dividing hours worked per year into annual earnings.
Overtime and compensatory time
Government workers, including AD employees, are not treated the same as private sector workers because the government does not always have to pay employees one-and-a-half times their normal pay (time-and-a-half) for overtime hours. In this way, Congress recognizes that government agencies are required to live within a legislative budget and may not be able to pay for overtime. A public entity, including an AD, is allowed to give employees extra time off in the future instead of paying overtime, provided that workers receive one-and-a-half hours of future time off for each hour of overtime worked and provided that there is an agreement in advance of the work to receive comp time in lieu of overtime. The maximum accrual for most public employees is 240 hours. There are additional exemptions for employees that qualify for certain fire fighter and emergency response exceptions. These exemptions are complex, and require measurement of the amount of response time spent on certain calls. Before allowing accrual beyond 240 hours, legal counsel should be consulted.
Once compensatory time is earned, it is the property of the employee. Within the bounds of reasonableness, it may be taken when the employee desires. Under a May 2000 ruling by the U.S. Supreme Court, however, public employers may require that employees take compensatory time they have accrued.
An employee does not have the right to decline to be paid overtime. Remember, the original passage of FLSA in 1937 was not intended to bene?t workers but to employ more workers when over a fourth of the workforce was unemployed. The purpose of replacing the 60-hour week with the 40-hour week was to provide more jobs.
When an employee dies, quits, retires, is ?red or is laid off, all the employee’s unused compensatory time must be paid at either the employee’s ?nal rate of pay or the employee’s highest rate of pay in the ?nal three years, whichever is higher. Thus, accrued compensatory time is not only limited but is also an AD liability on the AD’s ?nancial report, therefore, the AD needs to track it and not just rely on employees to track it. Timesheets need to report compensatory time earned in each period.
AD personnel are often on call. Generally, rulings under FLSA on whether on-call time must be paid have hinged on the required show-up time. If an on-call worker’s movement is unreasonably restricted, they are considered to be on-the-job and must be paid accordingly. Consult with the AD’s legal counsel and determine if the District’s on-call policy may trigger pay and overtime issues. Liability across the staff of the AD can pile up quickly in the event of a violation.
If an employee ?les a complaint about labor practices, the U.S. Department of Labor (DOL) investigates. The DOL investigators do not look solely at the hourly records of the employee or former employee who complained, but review all work records of all employees — even those the AD counts as exempt from coverage. They often ?nd violations of some sort, nearly always in record keeping. The DOL can assess penalties that go back two years from the date the complaint was ?led, or three years if the employer was purposely trying to dodge the law. Penalties can be doubled for certain violations, or tripled, in some cases. Don’t risk an investigation. Keep careful overtime records and compensate overtime.
Other common benefits
The FLSA concerns only three sets of numbers: 40 hours in seven days or for “207(k) employees,” 212 hours in 28 days, or 53 hours in seven days. In order to qualify for an other-than 40-hour work period, law enforcement or firefighting exceptions must be met. Legal counsel should be consulted in advance of any decision to use other than a 40-hour work period for FLSA compliance. The FLSA does not concern holidays, vacations, Sundays, sick leave or other common employee bene?ts. Nor does it concern special pay rates, such as night differential and holiday pay. Whether to offer any of these bene?ts is an AD board decision.
Several groups of employees, including executive, administrative and professional workers who are paid a salary, are exempt from certain overtime and minimum wage coverage rules. Each class is tightly de?ned. Executives must have hire and ?re authority, make management decisions, supervise at least two workers (not counting themselves) and make at least $455 per week, based on current rules. Administrative workers must spend at least 80% of their work time deskbound and doing administrative tasks, be able to exercise independent judgment and make the minimum compensation per week required by the Department of Labor rules. Professionals must have completed a recognized training program, usually at the master’s degree level, meet the pay criteria and be able to exercise independent judgment. Those who provide training and instruction may also be exempt. The above information is as of this writing. Consult with the AD’s legal counsel to verify current rules before categorizing an employee as exempt.
Exempt employees must be paid on a salary basis, which means they are not subject to having their pay docked for any reason other than dangerous safety violations, regardless of hours worked. An AD puts itself at risk if it pays overtime to an exempt employee, because that makes it seem as if the employee is an hourly, rather than salaried, worker.
In most ADs, only the EMS chief is likely to be classi?ed as exempt, and then only if the EMS chief supervises at least two employees. An AD should be cautious about classifying workers as exempt. Boards are encouraged to become well-informed about the implications of such decisions.