Dear Management Doctor:
Our legal department has determined that under FLSA rules planners are nonexempt personnel and are to be reclassified as hourly wage earners, whereas until now they have been salaried employees. This interpretation will change the professional status of our three certified planners, and does very little to encourage our up and coming staff to pursue professional certification. Is this something to be concerned about? How do other cities classify their planners? Can you provide any information that can be used to clarify or address this interpretation? I know that APA/AICP is running a job analysis survey but don't know if it could address this matter. I would appreciate hearing from you.
Julianne R. Rankin, FAICP
I never start my responses by saying "this is not intended to constitute legal advice," but - this is not intended to constitute legal advice! This is the Management Doctor speaking, not an attorney.
What we are talking about is the Fair Labor Standard Act, which was adopted in 1938 and has remained virtually unchanged for many years. However, in March 2003 there were major changes. The big issue was are employees "exempt" or "non-exempt?" Exempt means not having to be subject to the overtime provisions. Generally exempt employees need to be:
I suppose we can find some who still don't think planners are "professionals" (like your attorney), but I am not one of them. Thus, I think planners should be exempt.
I have always maintained (and it has been my experience) that any "professional" staff (i.e., those positions requiring a degree) are exempt and therefore not able to earn overtime pay. Comp time - whether formal or informal - has always been my preference. Generally, the exempt positions should have greater benefits, usually in the form of additional "administrative leave" (not earned comp time) that is standard and is to make up for the extra hours required to attend CC/PC meetings after hours. Furthermore, these employees are paid a higher wage as well. Management employees (i.e. the exempt employees) are not usually members of a union. Overtime generally tends to be a union issue, so if you have unions check their provisions on this issue. I believe overtime should be for the non-management employees that have no supervisory responsibilities (and I define supervisory as those that conduct/sign the formal employee evaluations, implement disciplinary actions, are involved in the selection of personnel, etc. - not necessarily "leadworkers" who may be in charge of a group function).
I am working with a few communities that are having trouble keeping up with permitting and have agreed to pay overtime for both planners and engineers. However, I believe this is a local decision and comp time would not likely work in this situation.
Undoubtedly some of our readers have had legal opinions on this issue so I hope we hear from them.
The Management Doctor
This was done in the City of Austin several years ago. Planners, including senior planners, are subject to overtime. The significant impact turned out to be that the City didn't adequately budget for the overtime and so the remaining non-overtime planners had even more work heaped on their plates. Over time it has worked out as some of the other respondents suggested. Most planners are no longer working routinely uncompensated hours. And it hasn't hurt Austin's ability to recruit candidates. If you work in an environment with employee unions (definitely not Texas) this classification system limits your ability to assign supervisorial responsibilities to hourly employees.Carol B
San Marcos, TX
In this day and age of "doing more with less," I'm not so sure being exempt is all that it's cracked up to be. In the rush to achieve professional status, you may be cutting off your's, and more importantly, your staff's ability to be fairly compensated for the long hours you put in. One needs to factor in the issues of staff morale and burnout in one's assessment of forgoing fair compensation in return for "paper" status of being exempt. You can't take exempt status to the bank.
Has the City of McAllen talked to the League of Cities, the State AG, or other authority to re-check their opinion? It sounds completely wrong to me. Also, why would the city want to pay all that overtime for planners to attend after-hour meetings? Of course if I were a planner in that city, I wouldn't object to the extra shekels. If other cities did it that way, most of us could retire at 40.
Robert Atallo, AICP, CFM
In the City of San Ramon, our planners are considered professional and are therefore exempt. We have a city attorney who agrees.
I strongly suggest seeking advice from an attorney specializing in employment law. Several of the statements in this discussion indicate some misunderstanding of FLSA; one is that non-exempt is not synonymous with hourly wage, another is that compensatory time/overtime calculated at time-and-one-half as compared to a one-to-one calculation for administrative leave are not strictly union issues.
Our county has always classified our professional planning staff, except for managers and exempt employees, as nonexempt. The staff is compensated beyond a forty-hour work week at 1.5 times/hour. They can elect to take it as pay, or as compensatory time off . Management cannot dictate how that time is compensated, only to approve or disapprove time worked beyond a forty-hour week. Managers and the exempt employees (there is a formula for providing a certain number of exempt employees per number of department staff for each department) are compensated at straight time (1 hour for each hour beyond 40 hours). Again, that can be in the form of pay or compensatory time at the election of the manager/exempt employee earning that time. The only person who cannot take pay for hours worked beyond forty is a department head - that person can only be compensated at straight time in the form of compensatory time off.
Mike Harper, FAICP
We recently went through the same type of thing here. I had to submit to my County Clerk the reason I was exempt. I used the tests below:
Executive Exemption Test
Employees in exempt titles are compensated as follows: