State and Local Government
Self Assessment Tool
NOTICE: On August 30, 2023, the Department of Labor (Department) announced issuance of a Notice of Proposed Rulemaking (NPRM), Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees. The NPRM proposes to update and revise the regulations issued under section 13(a)(1) of the Fair Labor Standards Act implementing the exemption from minimum wage and overtime pay requirements for executive, administrative, and professional employees. Proposed revisions include increasing the standard salary level and the highly compensated employee total annual compensation threshold, as well as providing an automatic updating mechanism that would allow for the timely and efficient updating of all the thresholds to reflect current earnings data.
The U. S. Department of Labor's Wage and Hour Division produced this self assessment tool to help employers comply with the provisions of the Fair Labor Standards Act. It reflects what our experience has shown to be some of the most common problems encountered in State and local governments. You can use this tool to help evaluate your agency's level of compliance. You are not required to use this tool, but we believe you will find it helpful in preventing problems and achieving compliance with the Fair Labor Standards Act. If you answer YES to any question, you are likely out of compliance. To know what you should be doing, refer to the attached Rules Summary or call the Department of Labor's toll-free help line at 1-866-4US-WAGE.
RULES SUMMARY
Do you have any hourly employees (or salaried non-exempt employees) who:
1. are not compensated for hours worked in excess of 40 per week with paid time and 1/2 or compensatory time at time and 1/2?
Covered, nonexempt employees are required to be paid overtime pay at a rate of not less than one and one-half times their regular rates of pay after 40 hours of work in a workweek. Under certain prescribed conditions, employees of State or local government agencies may receive compensatory time off at a rate of not less than one and one-half hours for each overtime hour worked, instead of cash overtime pay. Police and fire fighters, emergency response personnel, and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all others, 240 hours.
Regulation 553-Application of the FLSA to Employees of State and Local Governments , Handy Reference Guide , Fact Sheet #7, State and Local Governments under the FLSA
2. are not paid their accrued compensatory leave balance upon termination of their employment?
Upon termination of employment, an employee shall be paid for unused compensatory time earned after April 14, 1986, at a rate of compensation not less than--(1) The average regular rate received by such employee during the last 3 years of the employee's employment, or (2) The final regular rate received by such employee, whichever is higher.
Regulation 553-Application of the FLSA to Employees of State and Local Governments
3. work two or more jobs for the agency and their hours are not combined to determine if overtime premium payment is due ?
If in any workweek an employee is covered by the Act and is not exempt from its overtime pay requirements, the employer generally must total all the hours worked by the employee for it in that workweek (even though two or more unrelated job assignments may have been performed), and pay overtime compensation for each hour worked in excess of the maximum hours applicable under section 7(a) of the Act.
Regulation 778-Interpretative Bulletin on Overtime Compensation , Section 7(p) of the Fair Labor Standards Act
4. earn shift differential pay, incentive pay, performance-based bonuses, on-call pay, and other pay for services for whom that additional pay is not factored into their overtime rate of pay ?
The regular rate of pay cannot be less than the minimum wage. The regular rate includes all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include reimbursement for expenses incurred on the employer's behalf, premium payments for overtime work or the time-and-one-half premiums paid for work on Saturdays, Sundays, and holidays, discretionary bonuses, gifts and payments in the nature of gifts on special occasions, and payments for occasional periods when no work is performed due to vacation, holidays, or illness.
Regulation 778-Interpretative Bulletin on Overtime Compensation , Fact Sheet #23-Overtime Pay Requirements of the FLSA
5. work during their unpaid meal break or during other "off-the-clock" hours (i.e. before or after their shift) without counting that time as hours of work?
Bona fide meal periods are not worktime . Bona fide meal periods do not include coffee breaks or time for snacks. These are rest periods. The employee must be relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating. For example, an office employee who is required to eat at his desk or a factory worker who is required to be at his machine is working while eating.
Regulations 778-Interpretative Bulletin on Overtime Compensation
Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. The employee may be a pieceworker, may desire to finish an assigned task or may wish to correct errors, paste work tickets, or prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that the employee is continuing to work and the time is working time.
Regulations 785-Hours Worked Under the FLSA ; "Off the Clock" Compliance Assistance
Do you have any salaried employees who are not compensated for overtime hours who:
6. earn a salary of less than $455 * per week?
To qualify as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, generally, an employee must be compensated on a salary basis at a rate of not less than $455 * per week exclusive of board, lodging or other facilities. Administrative and professional employees may also be paid on a fee basis, as defined in Sec. 541.605.
Fact Sheet #17G-Salary Basis Requirement
7. perform manual work and do not supervise the equivalent of two full-time employees?
To qualify for the executive employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.
- The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
- The employee must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
Regulation 541-Exemptions - see section 541.100 , Fact Sheet 17B - Exemption for Executive Employees Under the FLSA
8. perform routine office work and do not supervise the equivalent of two full-time employees?
To qualify for the executive employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.
- The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
- The employee must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
Regulation 541-Exemptions - see section 541.100 , Fact Sheet 17B - Exemption for Executive Employees Under the FLSA
To qualify for the administrative employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
- The employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Regulation 541-Exemptions - see section 541.200 , Fact Sheet 17C - Exemption for Administrative Employees Under the FLSA
9. serve as a deputy to an elected official, do not have a primary duty that includes the exercise of discretion and independent judgment with respect to matters of significance, and do not supervise the equivalent of two full-time employees?
Section 3(e)(2)(c) of the Act provides an exclusion from the Act's coverage for officials elected by the voters of their jurisdictions, and for personal staff members and officials in policy-making positions who are selected or appointed by the elected public officials and certain advisors to such officials. In order to qualify as personal staff members or officials in policymaking positions, the individuals in question must not be subject to the civil service laws of their employing agencies. The term �civil service laws� refers to a personnel system established by law which is designed to protect employees from arbitrary action, personal favoritism, and political coercion, and which uses a competitive or merit examination process for selection and placement. Continued tenure of employment of employees under civil service, except for cause, is provided. In addition, such personal staff members must be appointed by, and serve solely at the pleasure or discretion of, the elected official.
Regulation 553-Application of the FLSA to Employees of State and Local Governments
To qualify for the executive employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.
- The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
- The employee must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
Regulation 541-Exemptions - see section 541.100 , Fact Sheet 17B - Exemption for Executive Employees Under the FLSA
To qualify for the administrative employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
- The employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Regulation 541-Exemptions - see section 541.200 , Fact Sheet 17C - Exemption for Administrative Employees Under the FLSA
10. closely follow established policies and procedures and do not supervise the equivalent of two full-time employees?
To qualify for the executive employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise.
- The employee must customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and
- The employee must have the authority to hire or fire other employees, or the employee's suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.
Regulation 541-Exemptions - see section 541.100 , Fact Sheet 17B - Exemption for Executive Employees Under the FLSA
To qualify for the administrative employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and
- The employee's primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.
Regulation 541-Exemptions - see section 541.200 , Fact Sheet 17C - Exemption for Administrative Employees Under the FLSA
11. work in a professional position, but do not possess at least a 4-year degree in their field?
To qualify for the learned professional employee exemption, all of the following tests must be met:
- The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 * per week;
- The employee's primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
- The advanced knowledge must be in a field of science or learning; and
- The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
Regulation 541-Exemptions - see section 541.300 , Fact Sheet 17D - Exemption for Professional Employees Under the FLSA
Do you have any employees under the age of 18 who :
12. operate motor vehicles on public roads?
No employee under 17 years of age may drive a motor vehicle on public roads as part of his or her job if that employment is subject to the Fair Labor Standards Act. Seventeen-year-olds may drive on an incidental and occasional basis on public roadways as part of their employment, but ONLY if certain requirements are met. Please see the following links for the limitations on 17-year old drivers.
Child Labor 101 - see page #11 , Fact Sheet - Teen Driving
13. operate power-driven woodworking machines (i.e. saws, nailers , etc)?
The following occupations involved in the operation of power-driven woodworking machines are prohibited: 1. The occupation of operating power-driven woodworking machines including supervising or controlling the operation of such machines, feeding material into such machines, and helping the operator to feed material into such machines, but not including the placing of material on a moving chain or in a hopper or slide for automatic feeding. 2. The occupations of setting up, adjusting, repairing, oiling, or cleaning power-driven woodworking machines. 3. The operations of off-bearing from circular saws and from guillotine-action veneer clippers.
The term power-driven woodworking machines shall mean all fixed or portable machines or tools driven by power and used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire-stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer.
Child Labor 101 - see page #13
14. operate power-driven bakery machines (i.e. power mixers) or power-driven meat processing machines (i.e. meat slicers )?
The following occupations involved in the operation of power-driven bakery machines, no matter where performed, are prohibited: 1. The occupations of operating, assisting to operate, or setting-up, adjusting, repairing, oiling, or cleaning any horizontal or vertical doughmixer ; battermixer ; bread dividing, rounding, or molding machine; doughbrake ; doughsheeter ; combination breadslicing and wrapping machine; or cake-cutting bandsaw .
Child Labor 101 - see page #19
The following occupations in retail establishments, wholesale establishments, service establishments, slaughtering and meatpacking establishments, or rendering plants are prohibited: All occupations involved in the operation or feeding of the following power-driven machines, including setting-up, adjusting, repairing, oiling, or cleaning such machines, regardless of the product being processed by these machines (including, for example, the slicing in a retail delicatessen of meat, poultry, seafood, bread, vegetables, or cheese, etc.): meat slicers , meat patty forming machines, meat and bone cutting saws, knives (except bacon-slicing machines).
Child Labor 101 - see page #18
15. operate any power equipment (i.e. lawn mowers, weed trimmers, etc)?
Fourteen- and 15-year-olds may not be employed in operation or tending of hoisting apparatus or of any power-driven machinery, including lawnmowers, trimmers, and " weedwhackers ," but not including office machinery and those machines in retail, food service and gasoline service establishments that are expressly permitted and discussed in the Child Labor Bulletin 101, Youth Employment Provisions for Nonagricultural Occupations Under the Fair Labor Standards Act.
ckers," but not including office machinery and those machines in retail, food service and gasoline service establishments that are expressly permitted and discussed in the Child Labor Bulletin 101, Youth Employment Provisions for Nonagricultural Occupations Under the Fair Labor Standards Act.