By Brenda Rodeheffer, General Counsel | Office of General Counsel
Don’t get caught without defenses in a lawsuit brought under the Fair Labor Standards Act, 29 USC § 201. The FLSA sets the minimum standards for payment of employees. It applies to all court employers, regardless of size.
The FLSA classifies all employees into two broad categories: exempt from FLSA overtime requirements and non-exempt from the same. Most court employees are non-exempt, including court reporters, bailiffs, and probation officers. Other than positions such as the chief probation officer or GAL/CASA director, you should obtain a legal opinion before treating employees as exempt.
The primary provision in the FLSA is the overtime law. If a non-exempt employee works more than 40 hours in a week, the employee must receive time and a half payment for all time worked over 40 hours. “Worked” means “worked.” If the employee takes benefit time or there is a holiday, the time off does not count towards the 40 hours worked.
A judge incurs serious liability to the court, the state, and the county as payroll agent, if adequate written records of time worked are not kept. It is up to each judge how the time records are kept, but there must be a daily written record of the hours worked and benefit time used by each employee. The employer may adopt any timekeeping system, but it must be accurate. It is not sufficient for employees to just put in the required hours daily; actual time worked needs to be recorded. The employer or a designated supervisor must sign that the time has been recorded each pay period. If an employee brings an action under the FLSA and the employer does not have such verified time records, it will be difficult for an employer to dispute the employee’s own records or recollection years after the fact.
Public employers have an option that private employers may not use, which is compensatory time. Compensatory time must be given at the rate of 1.5 times the work done over 40 hours. The time can be recorded and given in quarter hour segments. Because it is an exception to the general requirement of paying an overtime rate, the courts interpret the exception narrowly.
The FLSA says compensatory time may only be given in lieu of overtime pay if the employee agrees. The employer should require each non-exempt employee to sign a written document that says the employee is accepting compensatory time in lieu of overtime pay. A public employer may require this agreement as a condition of employment, but the document proves the employee knew of and accepted compensatory time as a condition of employment.
When an employee files suit, they may seek damages for up to three years of back pay owed. In addition, they are entitled to liquidated damages of double the pay owed, or triple if the failure to pay is deliberate. They are also entitled to attorney fees and costs which are likely to be even more than the salary owed.
If you feel your court or county would benefit from in-person training, contact Brenda Rodeheffer at (317) 234-3936 or