Wage and Hour Division (WHD)

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(Revised July 2008) (PDF)

Fact Sheet #7: State and Local Governments Under the Fair Labor Standards Act (FLSA)

This fact sheet provides general information concerning the application of the FLSA to State and local government employees.

Characteristics

State and local government employers consist of those entities that are defined as public agencies by the FLSA. "Public Agency" is defined to mean the Government of the United States; the government of a State or political subdivision thereof; any agency of the United States, a State, or a political subdivision of a State, or any interstate governmental agency. The public agency definition does not extend to private companies that are engaged in work activities normally performed by public employees.

Coverage

Section 3(s)(1)(C) of the FLSA covers all public agency employees of a State, a political subdivision of a State, or an interstate government agency.

Requirements

The FLSA requires employers to:

• pay all covered nonexempt employees, for all hours worked, at least the Federal minimum wage of $6.55 per hour effective July 24, 2008 and $7.25 per hour effective July 24, 2009;
• pay at least one and one-half times the employees' regular rates of pay for all hours worked over 40 in the workweek;
• comply with the youth employment standards; and
• comply with the recordkeeping requirements

Youth Minimum Wage: The 1996 Amendments to the FLSA allow employers to pay a youth minimum wage of not less that $4.25 an hour to employees who are under 20 years of age during the first 90 consecutive calendar days after initial employment by their employer. The law contains certain protections for employees that prohibit employers from displacing any employee in order to hire someone at the youth minimum wage.

Under certain prescribed conditions, employees of State or local government agencies may receive compensatory time off at a rate of not less than one and one-half hours for each overtime hour worked, instead of cash overtime pay. Police and fire fighters, emergency response personnel, and employees engaged in seasonal activities may accrue up to 480 hours of comp time; all others, 240 hours.

In locations with concurrent State wage laws, some States may not recognize or permit the application of some or all of the following exemptions. Since an employer must comply with the most stringent of the State or Federal provisions, it is strongly recommended that the State laws be reviewed prior to applying any of the exclusions or exemptions discussed herein.

Certain employees in the following examples may be exempt from the overtime requirements of the FLSA:

• employees who solely at their option occasionally or sporadically work on a part-time basis for the same public agency in a different capacity than the one in which they are normally employed
• employees at their option with approval of the agency, who substitute for another during scheduled work hours in the same work capacity
• employees that meet exemption requirements for Executive, Administrative, Professional or Outside Sales occupations
• hospital or residential care establishments may with agreement or understanding with employees adopt a fixed work period of 14 consecutive days and pay overtime after 8 hours in a day or 80 in the work period, whichever is greater
• mass transit employees' time spent in charter activities may be excludable from the regular rate
• minimum wage and overtime may not be required for employees working in separate seasonal amusement or recreational establishments such as swimming pools, parks, etc.

Employees Engaged in Fire Protection and Law Enforcement Activities

An employee in fire protection includes a firefighter, paramedic, emergency medical technician, rescue worker, ambulance personnel, or hazardous materials worker who is:

1. trained in fire suppression,
2. has the legal authority and responsibility to engage in fire suppression, and
3. is engaged in the prevention, control and extinguishment of fires or response to emergency situations

• employees may at their own option perform special duty work in fire protection and law enforcement for a separate and independent employer without including wages and hours in regular rate or overtime determinations
• Fire Departments or Police Departments may establish a work period ranging from 7 to 28 days in which overtime need be paid only after a specified number of hours in each work period
• any employee who in any workweek is employed by an agency employing less than 5 employees in fire protection or law enforcement may be exempt from overtime

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.