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Fair Labor Standards Act (FLSA)

Provisions Took Effect August 23, 2004
*Reviewed 12/2010

All librarians and trustees are advised to learn about the changes to the Fair Labor Standards Act made in 2004.

  • As a library board member, have you ever allowed your librarian to catalog gift books "on the person's own time"?
  • Is your librarian paid on a "salary" basis or on an hourly basis? Do you know the difference?
  • As a librarian, do you know how much you must make to meet the new "salary test" threshold that is now part of the FLSA regulations?
  • Is your librarian paid for time spent traveling to training sessions the board has approved and which are related to his/her job?

If you, as a library board member or a library staff member have ever asked yourself these or similar questions, you may have found the Personnel Workshops, July 20 in Cozad, July 23 in Louisville, July 26 in Schuyler, and July 29, 2004 in Alliance provided by the Library Commission of interest and use. Please read on for more information.

The Fair Labor Standards Act (FLSA) has been around since 1938. The federal Department of Labor's (DOL) Wage and Hour Division is responsible for the enforcement of FLSA. At the 2004 Personnel Workshops, participants learned that DOL has issued regulations related to wages, exemptions to FLSA, and compensation for overtime, travel and training purposes among other issues. These regulations have important relevance for public library directors, staff and boards;  libraries need to understand the implications for how they conduct their library business. This is especially important for library boards with governing powers which make up the great majority of Nebraska's public libraries. Libraries with advisory boards may wish to check with their library director if they want more information.

Following is a Q & A that may be helpful:

Q: What is the required minimum pay level of at least $455 per week; what happens if my salary isn't that high?
A: Under these regulations, unlike older ones which had "higher" and "lower" salary rates to determine these "white collar exemptions," there is a single threshold of $455 of actual pay per week that must be met first for a possible exemption. If the librarian works a 40-hour week, this translates into an annual salary of at least $23,660 (or $11.38 per hour). Note that a person must actually make at least $455 per week to meet this threshold; a salary of $227.50 for a 20-hour workweek, even though that means the person is earning at the same rate, does not meet the threshold. (Also see discussion of the "duties test" below.)
Q: What are "white collar exemptions" allowed under the provisions of the FLSA?
A: These regulations allow "white collar exemptions" for "an employee employed in a bona fide executive, administrative, or professional capacity . . . ." (See the next point.)
Q:Our librarian does not make enough to qualify under the "white collar exemption."  Since this is the case, what other FLSA provisions do I need to be conscious of?
A: You must be sure to pay your librarian for all work performed. Following are issues you need to be aware of:
  • Your employee may not perform work "off the clock," essentially volunteering their time.
  • You must pay your employee for travel time if the employee is engaged in activities that are part of the "employer's principal activity." This does not include regular travel from and to the employee's home.
  • You must pay for training time unless the training time meets four specific criteria that would exempt it from compensable time. (Let us know if you need to know these four criteria.)
     
Q: If my salary does meet the threshold of $455 per week, then is my job exempted from FLSA provisions automatically?
A: Not necessarily. Once the salary threshold is met, then there is a "duties test" in order to determine if the employee performs "approved work directly related to the employer's management or general business operations," and if the employee exercises "discretion and independent judgment with respect to matters of significance." In addition, the work just described must be the employee's primary duty, that is, it must make up the majority of what the person does. This duties test is only for "administrative" positions. A librarian's position, depending on level of education or the number of people supervised, as well as other factors, might also be exempt under the "executive" or "learned professional" classifications.
Q: If my job as librarian meets all of the above regulations but I'm paid on an hourly basis, is that OK?
A: Yes. If your job meets all the qualifications to be "exempt" from the above FLSA provisions, it may still be treated as "non-exempt" by the employer. This is not illegal, and the employer has no liability as long as the employer treats the employee as non-exempt for all purposes including payment of time-and-a-half for overtime hours. Employer liability occurs when a position is classified as exempt when it does not meet the regulations for such exemption (e.g., less than $455 per week, etc.). If the position is officially exempt, the employee is paid on a salary basis. This means the person is paid a predetermined amount that is not subject to reduction because of variations in the quality or quantity of the work performed. It also means the person receives the full amount of the salary for any workweek without regard to the number of days or hours worked. Note: Deductions from salary for absences of less than a day can result in the loss of the "white collar exemption."

For additional information on these and other FLSA-related regulations, the Department of Labor has created a new Web site: http://www.dol.gov/compliance/laws/comp-flsa.htm

Contact your city or county offices if you feel that these issues might need to be discussed with these local officials.

If you have any questions about this information, feel free to contact Christa Porter at the Nebraska Library Commission: 800-307-2665.

*Note: These notes were first reviewed by Susan K Sapp of the law firm of Cline Williams. She reviewed them again in December 2010. They are not intended to serve as legal advice, however. Their purpose is to make you aware of these provisions in labor laws. You should consult your municipal or county attorney or another attorney if you have legal questions concerning these new rules.