DOL provides guidance on federal v. state exemptions

Compliance with state laws isn’t enough

Posted March 18, 2019

According to the U.S. Bureau of Labor Statistics, there were over two million residential janitor jobs in 2016. These positions are generally considered nonexempt under the federal Fair Labor Standards Act (FLSA), so the employees are entitled to receive overtime and at least the minimum wage. This seems simple enough, but challenges can arise when state laws are considered, even in regard to employees who are not residential janitors.

If, for example a state law specifically exempts residential janitors (or any other position) from being exempt from the state law requiring overtime, does that mean that the employee need not be paid overtime?

The DOL answers

In a March 14 Opinion Letter, the U.S. Department of Labor answered this question with a resounding “no.” The questions referred to residential janitors, but the answers can apply to employees in many fields. An employer asked the following related questions and the DOL provided the answers:

  • Does the FLSA guarantee minimum wage and overtime pay to residential janitors despite their exemption from similar state law requirements?
    • When a federal, state, or local minimum wage or overtime law differs from the federal FLSA, the employer must comply with both laws and meet the standard of whichever law gives the employee the greatest benefit. Therefore, such residential janitors are not exempt from the FLSA’s minimum wage and overtime requirements, notwithstanding a state law that expressly exempts them from such requirements. Compliance with state law does not excuse noncompliance with the FLSA.
  • Does an employer’s noncompliance with the FLSA in reliance on such a state law exemption demonstrate good faith, allowing the employer to avoid liquidated damages or the FLSA’s three-year back wage liability period?
    • Relying on a state law exemption from similar state laws is not a good faith defense to noncompliance with the FLSA, but the details would need to be worked out in a court.
  • How may an employer track and record a residential janitor’s hours worked?
    • When an employee lives on the employer’s premises, not all time spent on those premises need to be considered hours worked. Time spent on the employee’s normal private pursuits, such as eating, sleeping, entertaining and other periods of complete freedom from all duties are not hours worked. Because it can be a challenge to determine when the employee is actually working, the employee and employer may establish a reasonable agreement that determines which hours are hours worked. Such an agreement must consider all the pertinent facts. Once this agreement is established, the employer’s time records need not be precise, as long as they comply with the agreement.

The key point is that, when multiple laws apply to a particular situation, you need to review the provisions of all laws and apply the one provision that affords the employee the greatest benefit.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.


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