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<br />~553.31 (a)
<br />
<br />!l553.31 Substitution-section 7(p)(3).
<br />
<br />(a) Section 7(p)(3) of the FLSA pro-
<br />vides that two individuals employed in
<br />any occupation by the same public
<br />agency may agree, solely at their
<br />option and with the approval of the
<br />public agency, to substitute for one an-
<br />other during scheduled work hour:> in
<br />performance of work in the same ca-
<br />pacity. The hours worked shall be ex-
<br />cluded by the employer in the calcula-
<br />tion of the hours for which the substi-
<br />tuting employee would otherwise be
<br />entitied to overtime compensation
<br />under the Act. Where one employee
<br />substitutes for another, each employee
<br />will be credited as if he or she had
<br />worked his or her normal work sched-
<br />ule for that shift.
<br />(b) The provisions of section 7(p)(3)
<br />apply only if employees' decisions to
<br />substitute for one another are made
<br />freely and without coercion, direct or
<br />implied. An employer may suggest
<br />that an employee substitute or "trade
<br />time" with another employee working
<br />in the same capacity during regularly
<br />scheduled hours, but each emplo'ye'e
<br />must be free to refuse to perform such
<br />work without sanction and without'
<br />being required to explain or justify
<br />the decision. An employee's decision to
<br />substitute will be considered to have
<br />been made at his/her sole option when
<br />It has been made (i) without fear of re-
<br />prisal or promise of reward by the em-,
<br />ployer, and (if) exclusively for the em-
<br />ployee's own convenience. '
<br />(c) A public agency which employs
<br />individuals who substitute or "trade
<br />time" under this subsection is not re-
<br />quired to keep a record of the hours of
<br />the substitute work.
<br />(d) In order to qualify under section
<br />7(p)(3), an agreement between individ-
<br />uals employed by a public agency to
<br />substitute for one another at their
<br />own option must be' approved by the
<br />agency. This requires that the agency
<br />be aware of the arrangement prior to
<br />the work being done, i.e., the employer
<br />must know what work is being done,
<br />by whom it is being done, and where
<br />and when it is being done. Approval is
<br />manifest when the employer is aware
<br />of the substitution and indicates ap-
<br />proval in whatever manner is custom-
<br />ary. L
<br />
<br />!l 553.32 Other FLSA exemptions.
<br />
<br />(a) There are other exemptions from
<br />the minimum wage and/or overtime
<br />requirements of the FLSA which may
<br />apply to certain employees of public
<br />agencies. The following sections pro-
<br />vide a discussion of some of the major
<br />exemptions which may be applicable.
<br />This list is not comprehensive.
<br />(b) Section 7(k) of the Act provides a
<br />partial overtime pay exemption for
<br />public agency employees employed in
<br />fire protection or law enforcement ac-
<br />tivities (including security' personnel
<br />in correctional institutions). In addi-
<br />tion, section 13(b)(20) provides a com-
<br />plete overtime pay exemption for any
<br />employee of a public agency engaged
<br />in fire protection or law enforcement
<br />
<br />activities, if the public agency employs
<br />less than five employees in such activi-
<br />ties. (See subpart C of this part.)
<br />(c) Section 13(a)(1) of the Act pro-
<br />vides an exemption from both the
<br />minimum wage and overtime pay re-
<br />quirements for any employee em-
<br />ployed in a bona. fide executive, ad-
<br />ministrative, professional, or outside
<br />sales capacity, as these terms are de-
<br />fined and delimited in part 541 of this
<br />title. An employee will qualify for ex-
<br />emption if he or she meets all of the
<br />pertinent tests relating to duties, re-
<br />sponsibilities, and salary.
<br />(d) Section 7(j) of the Act provides
<br />that a hospital or residential care es-
<br />tablishment may, pursuant to a prior
<br />agreement or understanding with an
<br />employee or employees, adopt a fixed
<br />work period of 14 consecutive days for
<br />the purpose of computing overtime
<br />pay in lieu of the regular 7-day work-
<br />week. Workers employed under section
<br />7(j) must receive not less than one and
<br />one:half times their regular rates of
<br />pay for all hours worked over 8 in any
<br />workday, and over 80 in the 14-day
<br />work period. (See ~ 778.601 of this
<br />ti tIe.)
<br />(e) Section 13(a)(3) of the Act pro-
<br />videsa minimum wage and overtime
<br />pay exemption for any employee em-
<br />ployed by an amusement or recre-
<br />ational establishment if (1) it does not
<br />operate for more than 7 months in
<br />any calendar year or (2) during the
<br />preceding calendar year, its average
<br />receipts for any 6 months of such year
<br />were not more than 33% percent of its
<br />average receipts for the other 6
<br />months of such year. In order to meet
<br />the requirements of section
<br />13(a)(3)(B), the establishment in the
<br />previous year must have received at
<br />least 75 percent of its income within 6
<br />months. The 6 months, however, need
<br />not be 6 consecutive months. State
<br />and local governments operate parks
<br />and recreational areas to which this
<br />exemption may apply.
<br />(f) Section 13(b)(1) of the Act pro-
<br />vides an exemption from the overtime
<br />pay requirements for "Any employee
<br />with respect to whom the Secretary of
<br />Transportation has power to establish
<br />qualifications and maximum hours of
<br />service pursuant to the provisions of
<br />section 204 of the Motor Carrier Act,
<br />1935." (recodified at section 3102, 49
<br />V.S.C.). With regard to State or local
<br />governments, this overtime pay ex-
<br />emption may affect mass transit sys-
<br />tems engaged in interstate commerce.
<br />This exemption is applicable to driv-
<br />ers, driver's helpers, loaders, and me-
<br />chanics employed by a common carrier
<br />whose activities directly affect the
<br />safety of operation of motor vehicles
<br />in the transportation on the public
<br />highways of passengers or property.
<br />(See part 782 of this title.)
<br />(g) Section 7(n) of the Act provides
<br />that, for the purpose of computing
<br />overtime pay, the hours of employ-
<br />ment of a mass transit employee do
<br />not include the time spent in charter
<br />activities if (1) pursuant to a prior
<br />agreement the time is not to be so
<br />
<br />6
<br />
<br />counted, and (2) such charter artivi-
<br />ties are not a part of the employee',;
<br />regular employment.
<br />(h) Additional overtime pay exemp-
<br />tions which may apply to emloyees of '
<br />public agencies are contained in Se;('-
<br />tions 13(b)(2) (employees of cert~,;n
<br />common carriers by rail). 13(b)(9) (cer-
<br />tain employees of small market r2.~iio
<br />and television stations), and section
<br />13(b)( 12) (employees in agriculture) of
<br />the Act. Further, section 13(a)(5) of
<br />the Act provides a minimum wage and
<br />overtime pay exemption for a[::;-icu]-
<br />tural employees who work on small
<br />farms. (See pt'.rt 780 of this title.)
<br />
<br />RECORDKEEPING
<br />
<br />~ 553.50 Records to be kept of compE'nsa-
<br />tory time.
<br />
<br />For each employee subject to the
<br />compensatory time and compensatory
<br />time off provisions of section 7(0) of
<br />the Act, a public agency which is a
<br />State, a political subdivision of a State
<br />or an interstate governmental agency
<br />shall maintain and preserve records
<br />containing the basic information and
<br />data required by ~ 516.2 of this title
<br />and, in addition:
<br />(a) The number of hours of compen-
<br />satory time earned pursuant to section
<br />7(0) each workweek, or other applica-
<br />ble work period, by each employee at
<br />the rate of one and one-half hour for
<br />each overtime hour worked;
<br />(b) The number of hours of such
<br />compensatory time used each work-
<br />week, or other applicable work period,
<br />by each employee;
<br />(c) The number of hours of compen-
<br />satory time compensated in cash, the
<br />total amount paid and the date of
<br />such payment; and
<br />(d) Any collective bargaining agree-
<br />ment or written understanding or
<br />agreement with respect to earning and
<br />using compensatory time off. If such
<br />agreement or understanding is not in
<br />writing, a record of its existence must
<br />be kept.
<br />
<br />~ 553.51 Records to be kept for employees
<br />paid pursuant to section 7(k).
<br />
<br />For each employee subject to the
<br />partial overtime exemption in section
<br />7(k) of the Act, a public agency which
<br />is a State. a political subdivision of a
<br />State, or an interstate governmental
<br />agency shall maintain and preserve
<br />records containing the information
<br />and data required by A 553.50 and, in
<br />addition, make some notation on the
<br />payroll records which shows the work
<br />period for each employee and which
<br />indicates the length of that period and
<br />its starting time. If all the workers (or
<br />groups of workers) have a work period
<br />of the same length beginning at the
<br />same time on the same day, a single
<br />notation of the time of day and begin-
<br />ning day of the work period will suf-
<br />fice for these workers.
<br />
<br />Subpart 8-Volunteer.
<br />
<br />~ 553.100 General.
<br />
<br />Section 3( e) of the Fair Labor Stand-
<br />ards Act. as amended in 1985, provides
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