Questions and Answers on Library Law: the Fair Labor Standards Act, Part 1

Scott Uhler, Janet Petsche, Rinda Allison and Kathleen Henn

This column appears regularly in Illinois Libraries and addresses commonly asked questions on library law. If you have questions you would like addressed in this column, please send them to: "Q and A on Library Law," Illinois Libraries, at the address on the title page of this issue. While we are not necessarily able to answer all questions, we will try to address those issues that are of most concern to the greatest number of libraries. This column begins a discussion of the Fair Labor Standards Act.

Q: What is the Fair Labor Standards Act?

A: The Fair Labor Standards Act ("FLSA") sets the minimum wage and standards for overtime pay and child labor. It also prohibits unequal pay based on gender. The Wage and Hour Division of the U.S. Department of Labor administers and enforces the FLSA. The FLSA requires that covered employees be paid overtime pay for hours worked in excess of forty per work week. It also requires that employers keep certain records for all employees covered by its provisions, even if an employee is considered "exempt," as explained below.

Q: Are all employees covered by the FLSA?

A: No, not all employees are covered by the FLSA. A category of employees such as elected officials, their personal staffs, policy-making appointees and legal advisors are not covered by the FLSA. For non-covered employees, an employer is not required to keep records according to the provisions of the FLSA.

Certain other employees can be covered by the FLSA, but be exempted from specific provisions of the Act. The three categories of exempt employees include executive, administrative and professional. For an employee who falls under one of the exempt categories, an employer must still keep records pursuant to the Act, but exempt employees are not subject to the minimum wage and overtime provisions. Therefore, an employer need not pay overtime or compensate an employee with compensatory time off if the employee works more than forty hours in a workweek.

Q: Are any library employees exempt from coverage under the FLSA?

A: It depends. The regulations from the Department of Labor state that no one is automatically exempt from the FLSA based solely on a job title. To determine if an employee is exempt, the employer must make an individualized assessment of the employee's specific job duties. Each of the three categories has two tests, the "short test" and the "long test," which indicate whether an employee meets the requirements of that category.

An employee must meet either the short test or the long test to be exempt from FLSA overtime requirements. The short test includes fewer conditions concerning the employee's duties, but it also requires a higher minimum salary. The long test provides for more details regarding the employee's duties and responsibilities. It also includes a minimum salary requirement, which is less than the salary requirement under the short test. If an employee satisfies either the short test or the long test requirements, that employee will be exempt.

The three categories of exempt employees are: executive, administrative and professional.

* Scott Uhler and Janet Petsche, are partners and Rinda Allison and Kathleen Henn are associates with the law firm of Klein, Thorpe and Jenkins, Ltd., with offices in downtown Chicago and Orland Park. The firm concentrates in the representation of public libraries and library districts in Illinois as well as other local governmental units.

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Q: How are the tests applied in a library situation?

A: Generally, an employee must be paid a salary to be eligible for one of the above exceptions. Therefore, hourly employees are usually not exempt. To determine whether to use the short test or the long test, look at the employee's salary. The short test has fewer requirements and should be used if the employee meets its salary requirement. If the employee's salary is too low for the short test's requirements, the employer should determine if the employee meets the requirements for the long test.

Q: How is the executive test applied?

A: Although no employee is automatically exempt by job title alone, there are some common examples of employees who are usually categorized as executives including an executive director of a government agency or department chief. The short test requires a salary of not less than $250 per week and the long test requires a salary of not less than $155 per week.

The short test also requires that the employee supervise two or more other employees and be primarily responsible for management of the agency, department or subdivision. In addition to the salary requirement, the long test also requires that the employee: primarily manages the agency; supervises two or more employees; has the power to hire, fire and promote (or whose input is given substantial weight); regularly exercises discretionary power and does not devote more than 20% of his/her workweek hours to the performance of duties outside of those enumerated above.

Q: How is the administrative test applied?

A: This category is more vague than the other two, and its requirements should be carefully considered. In most circumstances, executive/administrative assistants, personnel directors and office managers (who do not supervise more than two employees) are exempt under this category. The short test requires a salary of $250 per week, that the employee primarily performs office or non-manual work which is directly related to management policies and general business operations, and that the employee's primary duties include work that requires the exercise of discretion and independent judgment.

The long test includes requirements:

a. of a salary of not less than $155 per week;

b. of duties as described in the short test;

c. that the employee customarily uses independent judgment;

d. that on a regular basis, the employee assists a person employed as an executive or administrator or performs work requiring special training, experience or knowledge with only general supervision or under general supervision, completes special assignments and tasks; and

e. that the employee does not spend more than 20% of his/her time doing work that is not directly related to administrative work.

All the requirements of the long test must be met for the employee to qualify as an exempt employee.

Q: How is the professional test applied?

A: Examples of employees who fall within the professional exemption include doctors, nurses, lawyers, teachers/professors. This exception does not include all employees in a particular occupation or all employees in an industry with a large number of professional members. For example, the regulations state that "in the field of library science there are large numbers of employees who are trained librarians but who, nevertheless, do not perform professional work or receive salaries commensurate with recognized professional status." Therefore, if a professionally trained librarian either does not meet the salary requirements for the short or long test or does not meet the requirements pertaining to job duties, the librarian will not be exempt.

The short test provides that to qualify for the professional exemption, the employee must make at least $250 per week. Additionally, the employee must have duties that primarily consist of work requiring advanced learning or work as a teacher and the work must include the consistent exercise of discretion and judgment or consist of work requiring invention, imagination or talent in a recognized field of artistic endeavor.

The long test requires a salary of at least $170 per week. Additionally, the following requirements apply:

a. the duties must primarily include:

1.) work requiring advanced learning acquired by specialized instruction, as distinguished from general academic education; or

2.) performance of original or creative work depending on invention, imagination or talent;

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or

3.) teaching or tutoring for an educational institution;

b. the position must include the consistent exercise of discretion and judgment;

c. the work product must be predominantly intellectual and varied in nature; and

d. the employee must not devote more than 20% of his or her hours to activities not essential or part of the work.

We will address additional questions arising under the Fair Labor Standards Act in future columns.

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