employees. That regulation states as follows:
§ 541.5d(a) A Federal, State or local government employee ("public employee") who otherwise meets the requirements of § 541.118
shall not be disqualified from exemption . . . on the basis that such employee is paid according to a pay system established by statute, ordinance, regulation or public policy under which the employee accrues personal leave and sick leave, and absent the use of such accrued leave (because the leave has been exhausted or by the employee's choice), requires the public employee's pay to be reduced ("leave without pay") for absences, for personal reasons or because of illness or injury, of less than one work-day.
See 56 FR 45824 (September 6, 1991). This regulation indicates that docking an employee's pay for absences of less than a day -- a common requirement in public sector pay systems -- will not prevent an employee from being treated as being paid "on a salary basis."
Defendant contends that this amendment makes clear that the plaintiffs in this case are exempted from the requirements of the FLSA at least prospectively. Defendant concludes that even if it is liable for some back pay for overtime, it has no liability after September 6, 1991. This argument hinges on the assumption that plaintiffs are not exempt from the FLSA by virtue of the salary basis test, because their pay is docked for absences of less than a day. That assumption is not relevant to this case. Plaintiffs are not exempt from the FLSA because they are guaranteed overtime on an hourly basis under a District of Columbia law. The law indicates that plaintiffs are not paid on a "salary basis." The interim regulation has no effect on that conclusion because it only addresses what happens when a public employee takes leave or is otherwise absent for less than a day. As long as D.C. Code § 4-1104 is on the books, the plaintiffs in this case will fail the salary basis test. The Court will issue a declaratory judgment to that effect.
An appropriate judgment and order accompanies this opinion.
United States District Court
ORDER - February 25, 1992, Filed
Having considered all the arguments presented by the parties, it is this 25 day of February, 1992, hereby
ORDERED that plaintiff's motion for summary judgment is granted. The defendant shall pay the plaintiffs the difference between the amount of overtime they would have received under the FLSA from December 6, 1988 until the day this order is filed and the amount plaintiffs actually received as overtime; and it is
FURTHER DECLARED that plaintiffs are not exempt employees within the meaning of 29 U.S.C. § 213(a)(1) and therefore are entitled to overtime as calculated under the FLSA; and it is
FURTHER ORDERED that the interim regulations issued by the Department of Labor on September 6, 1991 do not apply to the plaintiffs in this case.
United States District Court