MEMORANDUM dui phoenix arizona

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					I         I
          ,                            MEMORANDUM


                                                            Date: November 27, 2009



    To:       Lori Godoshian                                From: C.H. Huckelberry
              Clerk of the Board of Supervisors                   County A m& -
                                                                            ii
                                                                          d n@


    Re:       Board of Supervisors December 1, 2009 Meeting
              Agenda ltem 7A - Proposed Amendments t o Personnel Policy 8-10 2 (A)(2) and (F)(3)



    The December 1, 2009 Board of Supervisors meeting agenda includes ltem 7 A - Proposed
    Amendments t o Personnel Policy 8-102 (A)(2) and (F)(3). This matter was continued from
    the November 3, 2009 meeting.

    I have been advised that attorney Michael W. Storie, who appeared before the Board of
    Supervisors at the November 3 meeting, is unable to attend the December 1, 2009
    meeting.

    Therefore, I request that this agenda item be continued t o the Board's January 5, 2010
    meeting.




    c:        The Honorable Chairman and Members, Pima County Board of Supervisors
              Christopher Straub, Chief Civil Deputy County Attorney
                                   December 1, 2009 



                               Personnel Policy 8-102.A.2 

                                Overtime Compensation 




At the November 3, 2009 Board of Supervisors meeting, this matter was continued to the
December 1, 2009 meeting. The Board requested additional information regarding this
matter, which is provided below.


I.     What caused the review of the policy?

In our normal review process associated with Personnel Policies and Merit System Rules,
the method of computing overtime was questioned. In addition, a US Department of Labor
audit of the Development Services Department in April 2009 brought the practice into
sharp focus as the Department of Labor denied any additional compensation that may have
been due employees, if the employee, during the pay period, did not work the full time
required to justify overtime.


II.    What is the premise for the change?

This matter has been discussed previously with the County Attorney. Perhaps the easiest
and simplest explanation arises from the US Department of Labor's explanation, as well as
a fact sheet from Fair Labor Standards Act (FLSA) lawsuits, which states, under Hours
Worked:

       "FLSA wages are determined by the number of hours an employee actually
       works. All time actually worked counts, but only time actually worked counts.
       "Hours not worked" are not governed by the FLSA, even if they are considered
       "work time" or "paid time" by the employer. Thus, "off the clock" work
       counts, but holidays, sick days, or other day off do not count as FLSA hours
       worked. Other hours worked but not counted by employers should be paid."


Ill.   What do other Countv jurisdictions do with regard to this matter?

Page 2 of the attached November 13, 2009 memorandum from Human Resources Director
Gwyn Hatcher summarizes other jurisdictions and how they address this issue. Very few
county jurisdictions, except for some Public Works classifications in Santa Cruz County,
Board of Supervisors Memorandum
Re: Personnel Policy 8-102.A.2 - Overtime
December I , 2009 Meeting Agenda
Page 2



pay overtime in the same way as Pima County presently does. Most all use the standard
FLSA definition of work time. With regard t o the State, the Arizona Department of Public
Safety has a specific statute that permits including certain non-worked hours in overtime
calculations (sick leave for calculating overtime is prohibited).


IV.    Recommendation

I am including for your information a letter directed by Chief Civil Deputy County Attorney
Christopher Straub t o Michael Storie, Esq. along with supporting information, as well as a
letter from County Attorney Barbara LaWall to Martin Bihn, Esq., and finally the previously
discussed memorandum from Ms. Hatcher. Based on this information, I continue t o
recommend the County alter its definition of when t o pay overtime such that it is only paid
for time worked in excess of standard pay period hours, provided the overtime is actually
worked, and no other forms of leave hours are included in the time worked category.


Respectfully submitted,




C.H. Huckelberry
County Administrator

CHH/mjk - November 24, 2 0 0 9

Attachments
                                    Memorandum
                                  HUMANRESOURCESDEPARTMENT


                                                          Date:     November 13,200
                                                                                      I . ,
To: 	 C. H. Huckelberry                                   From:     Gwyn Hatche
      County Administrator                                                  R
                                                                                 f
                                                                    ~ u m a n esour s Director


Re: 	 Personnel Policy 8-102.A.2 - Overtime

At the request of the Board of Supervisors, we have surveyed Arizona counties, the State of
Arizona, the cities of Tucson and Phoenix and the Department of Public Safety to determine if
leave time is included in overtime calculations. We have further explained the reasoning behind
the recommended amendment to Personnel Policy 8-102.A.2 - Overtime.

Discussion

The Fair Labor Standards Act defines overtime as time worked in excess of forty hours per
workweek and regulates wage and overtime payments and classification of employees eligible to
receive overtime payment. Though entities can give more than allowed by law, in question is
whether this additional compensation calculated on other than actual hours worked violates the gift
clause and if there are other laws that may allow or require groups of employees to be eligible for
overtime based on the use of paid leave time.

Human Resources has often questioned this practice as it applies to all eligible County
employees. Based on continued review and a settlement action by the United States Department
of Labor (DOL) in April 2009, Human Resources submitted a revised policy to the Board of
Supervisors for consideration. Please note that our research indicates that this overtime policy for
all eligible Pima County employees as currently written has been in place since 1986 and possibly
earlier.

Next, when DOL settled the overtime issue with Development Services in April 2009, DOL
excluded any weeks where holidays occurred since DOL's definition of overtime was calculated
only after the 'forty-hours actually worked" condition was met. Because DOL directed the
settlement to be calculated on an average basis and not on an actual basis, DOL decided that
Pima County should not assess the hours worked based on individuals andlor whether they took
annual or compensatory time off for any of the remainder weeks. Again, for settlement purposes,
DOL subtracted out the weeks from the average where a holiday occurred and determined that
time had not been worked in excess of forty hours for those weeks.

This review and decision by the DOL caused Human Resources to renew our concern regarding
the practice of Pima County allowing time not worked, such as annual leave, compensatory time
and the holiday benefit, to be included as time worked for the purpose of calculating overtime for
all eligible County employees. Also, this year was our major review and revision to the Merit
System Rules and Personnel Policies. Coupled with the fact that we are in financial straits and
our attempt to identify any improper policies relating to excess spending, we included the revision
to Personnel Policy 8-102.A.2. We continue to question the legality of this policy that has been in
place for more than twenty years. It was determined by the County Attorney's Office that it
appears to be a gift of public funds under the State of Arizona's gift clause.

Summary of Other Jurisdictions

Other than Pima County, and approximately 25 select public works classifications in Santa Cruz
County, other counties surveyed exclude forms of paid leave in the calculation of overtime.
However, at least one of the smaller counties, Greenlee County, permits the holiday benefit to be
included as time worked only if it is part of the normally scheduled workweek. Maricopa County's
Employee Compensation Plan defines overtime as time actually worked over the maximum
number of hours permitted by the Fair Labor Standards Act in a non-exempt employee's
established work period. This compensation plan further states that hours worked do not include
paid or unpaid leave time, lunch period, or holiday pay when the holiday was not worked. The
State of Arizona also calculates overtime based on hours worked in excess of forty hours and
excludes paid leave, except for the Department of Public Safety. The cities of Tucson and
Phoenix permit their nonexempt employees to calculate overtime pay using any form of paid
leave. Nevertheless, cities are not subject to the State of Arizona's gift clause and are able to
provide more to their eligible employees than counties. As a side note, the City of Tucson and
Apache County award compensatory time versus overtime pay.

Next, on November 11, 2009, we discussed this overtime matter with the Arizona Department of
Public Safety (DPS) and received a copy of that department's General Order pertaining to
Overtime Management and Compensation. It was discovered that Arizona Revised Statutes (ARS
$23-392) allows options for overtime compensation for certain law enforcement or probation officer
activities. As a result, the Department of Public Safety has adopted a "may" statement (and not a
mandate) that allows the department to approve the use of paid, compensatory leave andlor
annual leave for sworn personnel to meet the workweek or work cycle and earn overtime when
certain conditions are met. The use of sick leave for calculating overtime is prohibited. The specific
conditions are found in the attached Public Safety General Order 2.4.120 under Section VI1.G.
Among other things, the conditions for allowing paid leave to be used in the calculation of overtime
are as follows:

      Special details (Note: per DPS this allowed sworn officers to work on the Arizona Department of
      Transportation) ADOT construction and get overtime hours for doing so. The overtime was included
      in their paychecks and ADOT reimbursed DPS for it. Item 1 under Section V1I.G no longer applies
      due to DPS' officers not working ADOT construction in the same capacity that they used to work.)
      Unscheduledwork when vacation had been prescheduled at least fifteen (15) working days
      prior to the workweek or work cycle in which the unscheduled time is worked, and other
      prior authorizations.
      Holidays may be included in the calculation of overtime with supervisor approval for call out,
      emergency situations, and project funded overtime only.

Attached are select copies of statutes (ARS $23-391, $23-392 and $38-1001) pertaining to
overtime pay in general and overtime compensation for certain law enforcement or probation
officer activities which may require legal review. Please let us know if you need any further
information. Estimates on how much this policy costs us are being developed and should be
ready by November 16,2009.

Attachments
                             Overtime Management and Compensation
                             October 1, 2008
                 SUPERSEDES: GO 2.4.120 dated January 1,2008




I.    Purpose

      This general order establishes guidelines for the general management and compensation
      of employee overtime.

11.   Policy

      Responsibilities of the Department often require immediate response and extended work
      hours to meet all the Department's objectives. All supervisory, command, and
      management-level personnel must employ and strictly monitor a system of managing
      overtime to ensure responsive public service and efficient use of overtime funds.

 1.
11    Definitions

      A. 	 Call out: Sudden and unexpected condition requiring an employee to be summoned
          to work status during scheduled off duty time, and does not meet the definition of
           scheduled work time. Telephonic contact does not constitute a call-out unless it
           results in the employee being returned to duty status.

      B. 	 Compensatory Lave: Authorized absence or accumulation of leave as compensation
           for overtime at a rate not less than one and one-half hours for each hour of overtime
           worked by non-exempt employees.

          1. 	 Authorized for work funded by a DPS appropriated finding source, including
               some non-appropriated finding for full-time employee services; for example,
               inter-governmental agreements for Crime Lab personnel and services.

         2. 	 Authorized for work funded by grant sources; for example, DUI detail, speed
              detail, and secondary employment as defined in GO 2.1.30, Secondary and Of/l
              Duiy Employment.

      C . Emergency situation: Specific or potential threat to the safety of any person; a
          	
          significant threat to property requiring immediate action; or a situation that may
          seriously affect department technical, administrative, or enforcement operations.

      D. 	 Exempt employees: Refer to GO 2.4.110, Exempt Employee Time Accounting.

      E . 	Non-exempt employees: Refer to GO 2.4.100, Non-Exempt Employee Time
           Accounting.

      F . 	 On call: Predetennined period of time designated employees are requested to be


                                          Page 1 of 6
GO 2.4.120, Overtime Management and Compensation
October 1, 2008


          available for call out or emergency situation as defined above, but whose personal
          time remains their own until called for such situations. The employee receives a
          minimum of two hours compensation upon response to a call out.

      G. 	 vertime: Hours worked in excess of 40 hours per week (160 hours for wage-earning
         O
         employees working a 160-hour work cycle) after combining scheduled work time,
         unscheduled work time, and paid leave (excluding sick leave).

      H . 	Paid overtime: Overtime for which an employee receives compensation (which may
           include credited compensatory leave) in accordance with the Fair Labor Standards
           Act (FLSA), 29 USC §§206 and 207.

      I . 	 Proje~t~funded  overtime: Any spccific detail or grant work time; for example, DUI
            task force, speed detail, commercial vehicle enforcement detail covered by either
            appropriated or non-appropriated funding to accomplish a dcsignated purpose. Prior
            written approval of the division chief is required for the use of appropriated funds.

      J . 	 Scheduled overtime: Overtime that is planned and pre-approved by the employee's
            supervisor; for example, DUI task force, speed detail, commercial vehicle
            enforcement detail.

      K. 	 Scheduled work time: Hours worked according to a predetermined schedule as
           defined in GO 2.4.100, Non-Exenzpt Employee Time Accounting.

      L. 	 Stand-by: Period in which designated employees are required to wait within their
           duty station as defined in GO 2.1.90, Employee Residency Requirements. Employees
           shall refrain from the consumption of alcoholic beverages during the stand-by period,
           and shall remain in a paid status for the duration.

      M. 	 Unscheduled work time: Hours worked not included in the regularly scheduled work
          week.

      N . 	Work cycle: A work period established according to state and federal statute for the
          purpose of determining maximum employee work hours and overtime compensation;
          for example, a 160-hour128-day work cycle utilized by Aviation.

      0. Workday extension: Condition that requires employees to extend their workday either
         prior to the scheduled start of a workday or beyond the end of a workday with no
         break in work time, and does not meet the definition of scheduled work lime.

      P . 	 Work time: Time allocated to essential activities that contribute to the operations of
            state govermnent. Included are approved absences for military, civic duty, or other
            administrative leave as authorized by the Director according to applicable laws and
            Law Enforcement Merit System Council (LEMSC) rules.



                                           Page 2 of 6
                                               GO 2.4.120,Overtime Management and Compensation
                                                                                October 1,2008


      Q. Workweek: Refer to GO 2.4.100, Non-Exempt Employee Time Accounting.

IV.   Eligibility for Paid Overtime

      A. 	The Director determines eligibility for paid overtime according to federal and state
          laws and LEMSC rules based on duties performed and position held within the
          organization. Human Resources maintains current listings of non-exempt and
          exempt employees by position classification.

      B. Paid overtime is subject to availability of funds budgeted to each division and
         disbursement decisions by the Director and/or division chief.

          	
      C . Supervisors should be aware of the availability of overtime funds (See Section
          III.B.1) prior to authorizing paid overtime work and shall adhere to employees'
          preference for overtime compensation as marked on the Overtime Compensation
          Election Form (DPS 802-04182).

      D. Supervisors are prohibited from influencing employees' decisions regarding overtime
         compensation in completion of the Overtime Compensation Election Form.

      E. 	 Employees shall complete an Overtime Compensation Election Form for each unit
           they are assigned. The employee's preference to receive payment or compensatory
           leave for overtime worked is determined by the Overtime Compensation Election
           Form as follows:

         1. 	 Employees electing to accept either compensatory leave or cash payment allow
              for payment of overtime at the discretion of their bureau commander in
              accordance with funds availability.

         2. 	 Employees electing to accept only compensatory leave for department
              compensatory time shall receive cash payment for compensatory balances in
              excess of 120 hours.

         3. 	 Employees electing to accept only cash payment shall receive cash payment for
              all overtime worked. The ability to work overtime under this option shall be
              limited to availability of overtime funds.

      F. Exempt employees may be eligible for compensatory leave in accordance with GO
         2.4.1 10, Exempt Employee Time Accounting.

V. 	Adjustment of Unscheduled Work Hours

      A. 	 Unscheduled work time should be adjusted to ensure employees work no more than
         40 hours a week or 160 hours per work cycle, respectively.


                                          --
                                          Page 3 of 6
GO 2.4.120, Overtime Management and Compensation
October 1. 2008


      B. 	Commanders/managers may rcquire employees to work beyond scheduled work time
          under any of the following circumstances:

          1. 	 Call out.

          2. 	 Project-hnded work time.

          3. 	 When available manpower/coverage does not permit adjustment.

          4. 	 Attendance at court, hearing, or deposition, in an official capacity pursuant to
               notice or subpoena other than for jury duty.

          5. 	 Emergency situations as defined in GO 4.3.40, 24-Hour Peace Officer Authorily.

VI.   Authorization for Additional Work Time

      A. Employees shall obtain authorization from their immediate or second-level supervisor
         prior to working beyond scheduled work time. Prior authorization includes:

          I . 	 Oral or written approval.

          2. 	 Rosters established for on call.

          3. 	 Discretionary response of an odoff-duty peace officer to a life-threatening
               emergency situation, or other situation requiring immediate action or attention.

      B. 	 Supervisors shall analyze work requirements and adjust employee work assignments
           or schedules to balance demands for departmental service and management's
           overtime guidelines. Only overtime essential to canying out department operations
           will be authorized.

      C. 	 When prior scheduling cannot be accomplished due to short notices to appear, late
           receipt of subpoenas, or verbal notice to appear, and overtime cannot be avoided,
           employees shall make immediate notification to their immediate or second level
           supervisor of the service and comply with the notice to appear.

      D. Employees shall not exceed at total of 64 hours of employment worked (any
         combination of primary, secondary, or off-duty law enforcement related employment)
         in the work week (Saturday through Friday) without prior lieutenant/section manager
         approval.

      E. 	 Employees shall not exceed a total of 16 hours of employment worked (any
           combination of primary, secondary or off-duty law enforcement related employment)
           in any consecutive 24-hour period. Lieutenanvsection manager approval is required
           prior to exceeding this maximum.


                                            Page 4 of 6
                                              GO 2.4.120, Overtime Management and Compensation
                                                                                October 1,2008



VII.      Management Guidelines and Provisions

       A. Adjustments to employee work schedules should be reasonable and made within the
          employee's prescribed work week or work cycle. Supervisors shall notify employees
          at least 12 hours in advance if scheduled work time is to be reduced. If advancc
          notice is not given, employees shall be allowed to work four hours before being
          assigned time off.

       B. 	Compensatory leave requests may be denied at the discretion of the supervisor if
           department operations would be markedly disrupted by the employee's absence.

       C. Supervisors sha1.l ty to schedule meetings, training sessions, and administrative duty
                              r
          during the employee's scheduled work time and shall make every effort to provide
          ample notification to employees when attendance at such activities is necessary
          during off-duty periods.

       D. 	A minimum of two hours of work time shall be provided when employees on call or
           off-duty respond for a call-out assignment. This minimum shall not apply when
           employees are called for a workday extension.

       E. 	 Reasons for time worked in excess of the defined work week or work cycle shall be
            explained on the employee time accounting summary form in accordance with GO
            2.4.100, Non-Exempt Employee Time Accounting.

       F . 	 Employees shall indicate the appropriate code on the form by use of an "S" for
             scheduled overtime, ''Em for workday extension overtime and "C" for call out
             overtime.

       G. 	 Pursuant to ARS $23-392, the Department may approve the use of paid, compensatory
          leave, and/or annual leave for sworn personnel to meet the workweek or work cycle
          and earn overtime under the following conditions:

          1. 	 Overtime is accrued while working a special detail not related to the employee's
               regular duties or funded from a non-department source (See Section III.B.2)

          2. 	 Vacation and/or compensatory leave are prescheduled at least fifteen (15)
               working days prior to the workweek or work cycle in which the unscheduled time
               is worked. Exceptions to the 15-day limit may be approved by the employee's
               division chief.

          3. 	 When using annual leave to meet the workweek or work cycle with prior
               authorization from their respective bureau commander

          4. 	 Paid holidays may be used to accumulate overtime with supervisor approval for
               call out, emergency situations, and project-funded overtime only.


                                           Page 5 of 6
GO 2.4.120, Overtime Management and Compensation
October 1, 2008



      H. 	The use of sick leave to accumulate overtime is prohibited (See GO 2.4.20, Sick
          Leave).

      I. 	 All employees shall adhere to the provisions of this order and refer to GO 2.4.100,
           Non-Exempt Employee Time Accounting and the Employee Leave and Absence
           Procedures Handbook for additional guidance.

VIII. Reduction of Compensatory Leave Balance

      A. 	 See GO 2.4.50, M i l i t a ~ eave, for exceptions to this section.
                                      L

      B. 	 Supervisors shall require employees to reduce compensatory leave balances
           accumulated under Section 1II.B. I , whenever such balances exceed a total of 120
           hours. Whenever feasible, supervisors should provide employees three weeks oral
           notice to reduce their compensatory leave balances voluntarily. Supervisors and
           employees shall work together to determine mutually beneficial days for the leave
           reduction.

      C. 	 Compensatory leave requests should be made at least 12 hours in advance.

      D. When employees do not reduce compensatory leave balances voluntarily, orders shall
         be made in writing. Orders shall specify which days the employee shall take
         compensatory leave. The employee's supervisor shall maintain copies of written
         orders. Balances shall be reduced to no more than 80 compensatory leave hours
         when written orders are given.

      E. 	 The employee's division chief may grant in writing a temporary extension of the
           written order to reduce compensatory leave to no more than 80 hours.

 X
I.    Reporting Responsibilities

      A. 	 In accordance with FLSA guidelines, voluntary (nonpaid) overtime in similar job
           duties by non-exempt employees is not permitted. This does not prohibit employees
           from volunteering to work on programs where overtime compensation for such
           participation is not a department concern.

      B. 	 Time and activity coordinators shall:

          1. 	Coordinate the number of overtime hours authorized to be paid by the bureaus.

          2. Process and disseminate overtime reports as requested by Finance and the
             respective division, bureau, district, or section.

      C. 	 Finance shall provide the Department of Administration with the necessary reports
           to effect overtime payments in 4-week cycles.


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I    Arizona State Legislature                                                                              Rill Nunrher Sforch:
                                                                                                                                           .I


    Fortyli~~ith
             Lesislature - First Regular Session                                         session ( printer friendly verslorl I site map ( eniail
                                                                                  ctiar~ge
     Senate        House           Legislative Council   JLBC     More Agoncies        Bills       Colnrnittees         CalendanlNem


              23-391.PYertime oav: work week
              A. Subject to availability of appropriated funds, an employee of the state o r any political subdivision,
              serving in a position determined by the law enforcement merit system council, the director of the
              department of administration, the Arizona board of regents, the board of dlrectors for the Arizona state
              schools for the deaf and the blind or the governing body of a political subdivision, in the discretion of
              such board or body, t o be eligible for overtime compensation who is required t o work in excess of such
              person's normal work week, shall be compensated for such excess time at the following rates:
              1 One and one-half times the regular rate at which such person Is employed or one and one-half hours
                .
              of compensatory time off for each hour worked if overtime compensation is mandated by federal law.
              2. I f federal law does not mandate overtime compensation, the person shall receive the regular rate of
              pay or compensatory leave on an hour for hour basis a t the discretion of the board or governing body.
                                                ,
              B. Notwithstanding subsection A the state or a political subdivision may provide, by action of the law
              enforcement merit system council, the board of regents, the board of directors for the Arizona state
              schools for the deaf and the blind or the director of the department of administration in the case of the
              state or of the governing body of the political subdivision, for a work week o f forty hours in less than five
              days for certain classes of employees employed by the state or the political subdivision.




 02007 Ariron. State Legtslatura
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  Forty-ninthLegislature- First Regular Session                                     change session I printer friendiy ve~siun site map 1 email
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              23-392. Qvertime comDensation for certain law enforcement or ~ r o b a t i o n f f f c e ract1vities;~pt10&
                                                                                                                                   U

              definitions
              A. Any person engaged in law enforcement activities shall be compensated for each hour worked in
              excess of forty hours in one work week at the option of such employer a t the following rates:
              1 One and one-half times the regular rate at which such person Is employed or one and one-half hours
               .
              of compensatory time off for each hour worked if by the person's job classification overtime
              compensation is mandated by federal law.
              2. I f by the penon's job classification federal law does not mandate overtime compensation, the person
              shall receive the regular rate of pay or compensatory leave on an hour for hour basis.
              8.Any person engaged in probation officer activities shall be compensated for each hour worked In
              excess of eighty hours in a two week work period at the option of such employer at the following rates:
              1. One and one-half times the regular rate at which such person is employed or one and one-half hours
              of compensatory time off for each hour worked if by the person's job classification overtime
              compensation is mandated by federal law.
              2. I f by the person's job classification federal law does not mandate overtime compensation, the person
              shall receive the regular rate of pay or compensatory leave on an hour for hour basis.
              C. Paid leave may be considered hours worked for the purpose of calculating overtime.
              D. The director of the department of public safety may establish alternate work periods, in accordance
              with federal law, for the purpose of determining overtime compensation for those employees of the air
              rescue section of the department of public safety.
              E. Notwithstanding subsection C of this section, an alternate work period established by the director of
              the department of public safety for the purpose of determining overtime compensation shall not exceed
              twenty-eight days or one hundred sixty hours.
              F. For the purposes of this section:
              1. "Person engaged in law enforcement activities":
              (a) Means:
              (i) A law enforcement officer as defined by section 38-1001. 

              (il) A peace officer as defined by section 41-1701. 

              (iii) Any security personnel responsible for controlling or maintaining custody of inmates in correctional
              institutions maintained by this state or a county, city or town.
              (iv) A capitol police officer employed pursuant to section 41-794,subsection A.
              (b) Does not include any such person employed in a bona fide executive or administrative capacity as
              defined by the employer.
              2. "Person engaged In probatlon officer activities":
              (a) Means a probation officer or surveillance officer who is appointed pursuant to section 8-203,12-251
              or 12-259.
              (b) Does not include any such person employed in a bona fide executive or administrative capacity as
              defined by the employer.

 (52007 Arlzona Slate Leglslatbre                                                                                                    v*t,.,:,   U~M,,.~
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I    Arizona State Legislature                                                                                Bill Numbe S ~ a r v                   1


    Forty-ninth Legislature - First Regular Session                                 chanye session I pririler friendly version 1 site map 1 ernall
      Senate        House            LegislativeCouncil   JLBC       MoreAgencies        Bills       Co~nmittees          CalendarslNews

               ARS TITLE PAGE        NEXT DOCUMENT PREMOUS WCUMEKT
                                                                                                                                       I
               38-1001. Definitlons 

               I n this chapter, unless the context otherwise requires; 

               1 "Council" means the merit system council for law enforcement officers appointed under the provisions
                 .
               of this article.
               2. "Department" means the branch of government in whlch a law enforcement officer is employed.
               3. "Department head" means the officer charged with the duty of administering the branch of
               government having the jurisdlctlon over the law enforcement officer.
               4. "Law enforcement officer" means:
               (a) A regularly appointed and paid deputy sheriff of a county.
               (b) A regularly employed police officer in a city or town.




 02007 Arvolia Stale   Leglslrlure
                                            OFFICE OF THE

                               Pima County Attorney                                    Barbara LaWall
                                                                                      PlMA COUNTY ATTORNEY
                                  Civil Division
                                             32 N. STONE
                                              SUITE 2100

                             Tucson, Arizona 85701-14
                                                    12
                                            (520)740-5750
November 9.2009                           FAX (520)
                                                  620-6556




Mr. Michael W. Storie
Lmv Oflcrs yf Michael W. Sforie, P. C.
3 12 S. Third Ave.
Tucson. Arizona 85701

       RE: Proposed Changes to Pima County Personnel Poliqv8-102(A)(2j and (F)(3)

Dear Mr. Storie:

        This letter follows up on your appearance before the Board of Supervisors at its
November 3 . 2009 meeting regarding the above reference Personnel Policies. l'he Pima County
Sheriffs Deputy Association (PCSDA) opposcs the proposed changes to the Personnel Policies.
This Office and the County Administrator recommend that the Board adopt the changes as they
are required to conform to the law. You told the Board that reasonable minds could differ
regarding whether the proposed changes are required. The PCSDA, however. has not yet
articulated the legal reasoning supporting its position on this matter in a way that this Office can
meaningfully utilize to reassess its recommendation to the Board. Accordingly, to determine if
reasonable minds can differ on this matter, 1 would appreciate your answers to the following
questions:

       1. 1 am sure you would agree that the federal Fair 1-ahor Standards Act requires the
County to pay overtime to non-exempt ("hourly") employees. The overtime provisions are set
forth in 29 U.S.C. §207(a)(l).(e)(2).(e)(5). and (e)(6) which provide as follows:

       (a) En~ployees engaged in interstate commerce; additional applicability to
       en~ployees  pursuant to subsequent amendatory provisions.
               (1) Except as otherwise provided in this section. no employer shall employ
       any of his employees who in any workweek is engaged in commerce or in the
       production of goods for commerce, or is employed in an enterprise engaged in
       commerce or in the production of goods for commerce. for a workweek longer
       than forty hours unless such employee receives compensation for his employment
       in excess of the hours above specified at a rate not less than one and one-half
       times the regular rate at which he is employed.
Mr. Michael W. Storie
November 9,2009
Page 2



       (e) "Regular rate" defined. As used in this section the "regular rate" at which an
       employee is employed shall be deemed to include all remuneration for
       employment paid to, or on behalf of, the employee, but shall not be deemed to
       include



              (2) payments made for occasional periods when no work is performed due
       to vacation, holiday, illness, failure of the employer to provide sufficient work, or
       other similar cause; reasonable payments for traveling expenses, or other
       expenses, incurred by an employee in the furtherance of his employer's interests
       and properly reimbursable by the employer; and other similar payments to an
       employee which are not made as compensation for his hours of employment;



              (5) extra compensation provided by a premiun rate paid for certain hours
       worked by the employee in any day or workweek because such hours are hours
       worked in excess of eight in a day or in excess of the maximum workweek
       applicable to such employec under subsection (a) or in excess of the employee's
       normal working hours or regular working hours, as the case may be;

              (6) extra compensation provided by a premium rate paid for work by the
       employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth
       or seventh day of the workweek, where such premium rate is not less than one and
       one-half times the rate established in good faith for like work performed in
       nonovertime hours on other days;

        It would appear from these provisions that the County's obligation to pay overtime would
not accrue unless and until the employee actually works in excess of 40 hours in a workweek. Is
there anything in any other provisions of the FSLA, or in any other applicable law, that would
require the county to pay overtime to its employees for any time periods worked less than 40
hours in a workweek? If so, please cite the provision and discuss its applicability to the proposed
amendment.

      1 have attached for your review a Department of Iabor Fact Sheet entitled "Hours
Workcd Under the Fair Labor Standards Act" and information fmm the website of I,ee &
Mr. Michael W. Storie
November 9,2009
Page 3

Braziel, LLP - a Dallas Texas plaintiffs' f r specializing in labor and employment law. With
                                                im
regard to the lattcr, please see their definition of "Hours Worked."

        2. Your answers to question 1 above are important because A.R.S. 438-610 states as
follows:

        State or county officers, employees, members of boards and commissions, and deputies,
        stenographers, clerks and employees of any such officer, board or commission, or of any
        institution, shall receive the sulury provided b y law, and shall not, under any prrlexL
        receive any saIary or emolument in excess ofthe salarq'soprovided. (Emphasis Added.)

      On its face, this statute would appear to limit the ability of the Board to compensate
employees other than "by law." Does this statute apply to the County7 If not, why not?

        While I await your answers to these questions, County staff is assessing how other
jurisdictions are computing overtime for their non-excmpt employees. I would certainly
appreciate any insight you would have in this rcgard as well.




Chief Civil Deputy County Attorney

cc: 	   C.H. Huckelberry, County Administrator
        Martin Bihn
U.S. Departinent of 1.nbo1-
Emplo!.lncri~ S~alidards d l n i n i s t r : l t i n n
                       A
\Vt.agc autl Iiour Di\:ision                                                                                :   y




Fact Sheet #22: Hours Worked I!rlder the Fair Labor Standards .Act ( F I S A )
This fact sheet probides general inhrniation concerning \\.hat constitutes campcnsablc lime under the FJ>:l.
                                                                             ltii                    i                    Car
I'lrc Act requires that emplo!ees must recri\.c o~ least thc n ~ i ~ i i : ~ :\i:cr ~ land may ~ i oIhc e ~ i i l ~ l o y e d more
than 10 Iinurs in a \\eel\ \\.ithout recei\ing :I[ Icast one and onc-hal1'~imes       their reg~llarrales 01'pay for tile
ec.!:!.ifii. IIOLI~S.
                  Tlie amount smployccs should rt.cci\c cannot be delrrrnined \\ ilhoul k n o n ing ~ h c               numbcr o f
hours \\orked.

1)ciinition of "Employ"

D!. stalutory definition the term "cmplo)." includes "lo surfer or pennit to ~ o r h . "l'he ~ o r k w e e k
                                                                                                           ardinaril:
includes all timc during \\hicIi an employee i s nccessaril! required to hc on the employer's p~.e~niscs. dut! or  on
at n prescribed work place. "Workda! ". in general, nicnns thc pcriod b e h e e n tlic timc on any pi~rticular        da!
       s ~ tn1ployce colnrnrliccs hist'hcr "principal ;~ctivit!." and the timc on t l i i ~ dn!, at \\liich lief'sl~c
\\lic~~ ~cli                                                                                t                       ceases
such principal ac~ivity activities. 'l'hc u-orkilny may tliercthrc be longer lhan ~ h cmploycc's scheduled sliiti.
                       vr                                                                     c
        t
I~ours.our ol'duty. or production line tinie.

Application o f Principles

                                         tu
Employees "Sut'fcr-cd or Per~nitted" work: Work not rerluested but suffered or permitted to be perfornicd is
work titlic tliat must he paid for hy the employer. For csarnple, an employee may volunlarily continue to work
at tlic end ul'the shill l o finish an assigncd task or to correct crrors. Tlie reason i s imniatcrinl. The hours are
work limc and are compcns;~ble.

W a i t i n g Time: Whether waitins t i ~ n c I~L)LI~Se d ~ i d c trhc A c t depe~ids
                                              is      ~ork u                           upon the particular
circumstances. Gel~eraily. facts may show thal the employee was engaged to wait (\\hich is work time) or
                             the
the. bctb ma\- shn\v tliat the e ~ n p l o e c
                                             bvas waiting to he engaged i ~ h i c h not \\ark rime). For cxalnplc. a
                                                                                  is
sccrcrar). \\ho reads a book wliilc waiting Tc~rdictation 01.a fireman \tho p l a j s checkers \\liile nailing for an
al:lmi is n o r k i n g during such periods o f inactivity. 'l'licse emplu?,ees have been "engaged l o \vait."

                                                     to
On-Call Time: A n cmplojce \\ho is r c ~ l ~ l i r e d remain on call on the cmplo!cr's prcmises i s \\.ol.king \ \ h i l t
                            \\ho i s required to rcn~nin c;111 at home. ur \\hi] is a l l o \ \ t J IU Icave a message \\here
"on call." An e m p l o ~ e e                            on
lic/slie can be reaclicd. i s not \\orking ( i n most cases! \vhilc on call. Addi~ional  constraints on [he employer's
                  ld
freedom c o ~ ~require this tirnc to be co~npcnsated.

liest ancl k l c a l Periotfs: Rest periods urbhort duralion. iisunll> 20 rninutcs or less. arc c o n ~ ~ n oini industry
                                                                                                              r
(and promote the eftTcienc>-o f the cmploycc) and are customaril) paid for as n o r k i n g time. .l'liese shon periods
musl bc counted as IOLI~S worked. I!nnuthorizcd cstcnsions o f authorized v.orli breaks need not be counted as
Iiours norkcd hen tlic clnployer has expressly and i ~ n n r n b i g i ~ o ~comrnuriicatrd to the e~llpluyec
                                                                              ~sly                                that the
authorized break may unty last tbr a specific Ictigth o f tirne. tliat any extension o f the break is contrary to the
                                                                            Dona tide meal pcriods (typicall! 30 minutes
crnplilycr's rtrles. and an) extension o f r h e break w i l l bc punislic~l.
or morel generally need not be compensated as n o r k time. Thc c~nplo!.ce musl hc coniplclely relie\,cd from
duty Tor the purpose ol'cnting rcgular nicals. l ' h c cmploycc i s not relieved if he/slic is rcquirrd to perlbrrn an)
duties. \vhetlicr actibc or inactive. n:I~ilc celing.



                                                                                                                                     1
.

Sleeping T i m e and C c r t a i n Otlrer Activities: An eniployec whn i s required to hc on duty for less than 24
Iiours i s tci~rking                                   to                                     ~al
                    cvcn though IieAhe i s pcrrni~tcd slccp iir eripage in other ~ ~ c r s o racti\,itics \\lien 11ot busy.
An cniployee required to be on dut! for 24 h u i ~ r s Inorc may agree h i t h the employer to exclude from hours
                                                       or
                                  scheduled sleeping periods o f not more than 8 hours. provided adcquatc slccpiny
\corked bona fide ~ r g u l a r l y
facilities arc furnished by the empluyer and tllc elnployee ciirl usuall), cnjo! all nnin~errupted      night's sleep. N o
rcduction is pcrmitted u~iless least 5 liours ol' sleep is taken.
                                    at

                                                                                             gs.
Lectures, Meetings a n d T r a i n i n g Programs: Anendancc at Iccturcs, ~ n e e t i ~ ~training programs and siliiilar
activities need not be counted as w o r k i ~ i g i ~ n c
                                                   t     only if four criteria are met. namely: it is outsidc nor~nal
                                                                                                                    hours. i t
is v o l u n t a ~ not.joh relared. and no o ~ h c \v[irk is concurrtntly performed.
                   .                               r

                                       \vliicli apply in Jeterlnininy \.vhcther time spc111in travel i s c ~ n ~ ~ ~ e ~ ~ s a b l e
' T m t c l 'l'inic: 'l'lic ~,ri~iciples                                                                                tirne
depends up011tlic kind oTtravcl involved.

Home to W o r k ' r r a v e l : An e l n p l o y x \vho travels l i o m home befbre the regular norkday and rcturns to hislher
liomc at t l ~ c 01'thc workda). is cnyaged i n ordinan' home to nark travcl, s h i c h is not tvork time.
               end

l i o l u e to W o r k o n a Special One I)ay Assignment in Another City: A l l emplopce \rho regularl!. narks at a
                                                                            in
tiscd location in one cit! is give11(1 special one da) assign~nait another cityand returns l i o ~ i i c same dn!. 111s
                spent in tratelirlg to and returning l i o m the othcr city is \ ~ o r k
-Ilie t i ~ l i c                                                                      tinic. escrpt that the c m p l q c r may
deduct!not count that tirnc tlie eniplo\re ui>ulcJ norinailg spend cornrn~~ting thc rcgular \+ark site.
                                                                                            to

T r a r c l T h a t is A l l in a Day's Wcrrk: ' l ' i ~ n esp'cnt b y an employee ill travel as O ~ I ? f t h e i r principal activity.
                                                                                                       o
such as travel from jnb site to j o b site during tlie workday, is w i ~ time and ~ i i u she counted as Iiours rvorkcd.
                                                                                    k                t

                                     ~e
'l'rnvcl Away f r o m I l i ~ n Community: I'ravcl lhat keeps an umploycc away liorn h o ~ n c                   ovcrniglit is travel
awa!; fiom home. T~.:~vrl         atyay from liunic i s clearl!, \vork time when it cuts across tlie employee's workday. r l i e
                                                                                         ~          io      rs
time is not 0111) lii1\1rs\vurkeCI 011 regular \\orkin% da!s during ~rormal v o r k i ~hg ~ ~but also d u r i ~ i g
cirrrespontlii~yl i ~ ~ uCIIr s r i ~ ~ n \ \ o r k ida!s. .As an enforcerner)~
                                                      ~ig                      pcllic! tile L>i\ ision \\ill not considcr a u o r k tinic
that time spent ill [ravel a\\aJ lion1 home uutsidc o f regular aorkirig hours as s passenger on an airplane. train.
boat. bus. or automobile.

Typical Prublcms

Proble~ns     arise when rmplo!ers Tail to reccignize and count certain liours workcd as coiiipenrahlc tii~urs.For
cxsniple. an employee who remains at hisillcr desk while eating lunch and regularly answers the tcleplione and
r e k r s callcrs i s working. 'l'liis tirnc must he counted and paid as compc-nsablc hours worked because rhc
              lias
c~nployee not hccti co~npletely~.clicvcdf i o ~ n         dutv.

Wherc to O b t a i n i l d d i t i o n a l l n f o r n l a t i o ~ ~

F a r additional information, visit o u r Wage and H o u r Division Website: 111tti:i/u\r \ ~ . r \ : ~ ~ r l ~ i ~ \ ~ ~ . . ~ l r r l . ' : i l r .
nndlor call o u r toll-free information a n d helpline, available 8 a.m. to 5 p.m. i n ).our time zonc. 1-866-
4USWAC;E (1-866-587-9243). This pul?lication is for gcncral information arid i b r ~ tcr bc considered in tlie
                                                                                          o ~
                                                     contained in the regulations.
same light as official stntcnients o f p o s i ~ i o n

I '.S. I ) e p a r t ~ ~ l coft L : ~ b o r
                            n                                                                                         I -866-.(-C'S\\;AC;E
I r;tllcc.; t'crkins I l u i l ~ l i i i ~                                                                           1.y: I -X(>fi..187-93:lj
2ilO C:o~isriturion.\\.c.ni~c.U W                                                                                               C'ont;~ct I s
                    LX
V'~1~11ingtv11.' 202 I0
           "   9*           DOES Y O U R B O S S M A K E Y O U W O R K O F F T H E C L O C K ?
               P
                                 00   YOlJ G E ' I " C O M P ' T i M E " H A I ' H E H I ' H A N O V E R T I M E P R Y ?
                                         D O YOU C E l P A I D A S A L A R Y W H I L E D O I N G A JOB T H A I SHOULD
..
 ..-
       -   T~                                                                                                      PAY OVERTIME?


                                        THEN Y O U M A Y R E E N T I T L E D TO THOUSANDS 

                                             O F DOLLARS I N UNPAID WAGES AND 

                                         O V E R T I M E - iJCUS A D D I T I O N A L DAMAGES! 



                    LVH&I ARE YOUR RlGHrS i 0 WAGES,%NOOVERTIME?                                 ARE YOU EXEMPT?
                    WHATHOURS             COUNT 4 5 "HOUR5 !h;ORKEDs'                      OVCRTIME M I S ' I A ~ ~ S
                                                                                  5 COhlblON
                    F R E n i l ~ r ; r ~ASKED QUESTICIkS
                                         y                                    EXE~IPI SlATU5 OF S P i C i F l C JORS
                    LIST c i F L S A TERMS
                                ~                                                FII-LOUT OJH ~ U E S I ! O ~ N A I H ~
                    ABOUT US                                                                           CONTACT S
                                                                                                             U
                           -
Ovc~timeI.awyer.cnrn Glossary o f Terms Used in FI..SA 1.arrisuils

                                            g jq&Jj        -.




                                     GLOSSARY TERMS USED FLSA LAWSUITS
                                            OF          IN
*,
.-
                                    Atturnc! s' Fees
                                                                                                      ;~\\;u.tili)r "r.c:~ron;lhl~!
                                    Successt'ul 1,'I.S.A F1lnintiffsarc c.ntillc.cl ti) an adil~~ioncll
                                                      ,,
                                    atlornc>s' fscs (1.1lus                     tijr                           c t
                                                               rcirrlbur~c~ncrit nlan? o ~ ~ t - ( ~ ~ f - p o~ 'Lxc p c n ~ c ~
                                                              tliu
                                    incunucl i l l li~igarillg lawsuil I. t-iriplo)ecs arc 1-101 r c ~ l ~ t r n s i tl~i lrcpit!. ing
                                    art rrr1plo)er's altol'llzys' Lces urllcss their lawsuj! i s liircllous.

       YOUR RIGHTS 
                                         ' ~ ("C.;ornp. 'l'io~r")
                                     ( : o r ~ ~ p e n s ~ t ofriy n e
       ARE YOU E X E M P T ? 
 lrnil>1~l!.c.r.st.11ienell ~.rlil?io\-ci.s                                                       instcad LII'
                                                                                     11ici \ \ i l l se: ''C'tornp. l i ~ n i , "
       HollRS W O R K E D      u \ cl.time P I I ~ C ' r l i ~ l l i .~ i n i inrtc;cd oI'c:~.rh o\erti~llc> 11ot g<ilcr;~Il\
                                                     .                                               till-             i
                                              !,I
       COMMON MISTAKES pcr~:litz~~i ~iori-;o\;e~.~inlu~t~                         cml?lo!i.rs. Son-go\cr-l:tnent e~lllllo!st.:: \\.lit,
       FAQs                    II;I\ L, >irc.h 5 ) >lcn15 arc a l n ~ u b r l\\a! : in \iclia~icrrio l ~ l i i Ii ~ l a11J ci\\c.
                                                                                  n      ,                                i    ~
       SPECIFICJOaS                 c.lnpl(i! ces iiv 1.1npa1   ovtrtirnc. I ':ic!cr certain circi~mstuncc> pulillc       a
       FLSA TERMS                   e~~~pli):,-cr k ~ l l i ‘gnvcrnmc~ll!nn! pay (at Isart .;cllnc) ovcrtiiiic \villi "cnrnji.
                                                   (li
       QuEXJloNNAlRE                tinlc" ini~i.adcrl'casl?. Scc "The .Ill ill i ~ t ' C v l l ~Ipi ~ ~ i c .I "i ~ ar nlcirrs ilc~:iilc~i
       ABOUT US                     cl:.;cussic:tl
       CONTACT US
       HOME                          k)epiirtrncnt ot' [,allor (L)OL)
                                                                         r_ro\t'~.li~i~c\~~t in cllarcc t ) i ' e ~ t l i ~ rIIICi ~ ~ ~
                                    'l'llc I.>( ) I . is (lit li.ilc.ral -            ;.igcncv
                                                                                        -.   .                            - c Fair
                                     I .nhol Stalltl;ll.cis Act. If a persol1 ciocs not \v;lnl tci hirc :I ~>l.il'Cttcltr)rrlc! (i)
                                                                                                                         a
                                    cnli~rcs                                                               c~nploycc.I I I O L I ~ I . II ~ I C
                                                  tllcir rights. !lie DOL. tnir) he. 21blr lo assist l l ~ c
                                    T)01. t111c.;no1 ; ~ l u a y s     bring suil on I.rchilll'ol'un~~~l~~!~ccs.




                                               E
                                    I<xr.~npt i n l ~ l o ccs ?
                                                                   es
                                    I:xoupt c r l l p l r ~ ~ s :u.c not cntitlcd to bc 11aid or.crtmc. I'11c.y ;tI.e callcti
                                                                IIIL'Y
                                    "cxemp\" i l c c u i ~ s ~ al-c exelnpl I'ro~nthe o\:crli~lic~.)r inimum \\age (or
                                                                                                               m
                                    hot111reqilirclncnh o f 111s                                 tiresc elr~l,!o\ccs arc holla liiic
                                                                         l.'l..C;i\.C~e1lc.1-all).
                                    c s e : t ~ i ;~I . I I I ~ I I , rI ~ C .I              I I ~ L IS he) must be ~piiicl~ I I I;I
                                    >aim.> (01 kCj                                                      c\   csclnpt c~nl)ln!-i.c. If an
                                                         L,'ls)s arid nus st psl.li)rrn tiic t l ~ ~ t i(~I'an
                                    c~~ipir!yc.c p:liil on iiI1 11t?~1r1!hi~sir;\\.ill1 \.cr!. I>\\ t'sccptioris) 112 i:, I l ( l r an
                                                 ib                                   I
                                    I 'xc'ri~p~ ~ i p l c ~ yle e~ ista S(1ric\c~i~pt
                                              e~                       .                  c~nplo!,cc. Sce ".Ire You Lxcn~pt''        I.ur
                                    nic)rc dctail 011 t l i i b issue.




                                    F1oui.s Worlted 

                                    I-1.S.A \v:rgcs : ~ r t lc~cnnincd llle nlrlnber t r f h o ~ r ~an miployre actu:~ll>-
                                                          c           tlg                            .; 

                                    rvol.ks. All ~ i ~ n t .
                                                        uct~lally wor1cc.d courlts. but only tirile aclurtll!. ~ v o r k t d
                                                                                                                           snwils.
OvertimrLawyer.com   - Glossary o l " I ' m ~ ~llscd in YLSA
                                               s                          i,awsuils                                                                       Page 2 of 5
                                                                                  I l
                            "l40~1t-5 o1 \ \ < ) I hc.ci" arc. uot go\ ~ ~ r l i?! ~ irllr 1.LS.A. C \ 11 i1'1liq i ~ r c
                                      n                                                                    '
                            considcrcd "\\i)rk ~ ~ I I I L ,or " ~ i ~ ~ i i l I! ~ h rc~llplo!cr. I'hui. " ~ > L ~ . c, I/ I ,.'., "
                                                                "          iilnc" .         :                                    L L oik

                            \\\>A cua!lt>. l ~ IlciiJa! 5 . sick iln! :.. c)r CJIIIL.I. d:~!: c)I.l'ilt~ C K ~ L I .IF~ Il:I.S.\
                                                         t                                      ,                 111.tt       I
                                                                                                   L! I
                                   \\orkcd. O t l ~ ~I I.OrL I ~ S norkcd 1!111 not c ~ ~ I I ~ ~ h , Lcn~lllt.ryers
                            Iit~us~.                                                                                        sh1.1u1iibc
                            paid. I.'l)r ;I more c1c~1;rilc.dl i s c i ~ > s i t)l'\\liat ib ancl \ \ l > i i l i >
                                                                  t            o~~                                       "lit~~irs
                            \<i>rkcdq' t ~ 1 1 ~ . 11~11
                                        se          '"\\     ;\;<..I~!o~II      t)rLc~l~'?" ~ c .
                                                                                 ,\        p

                             lndcpcndent ('ontractor
                            :\YI i ~ i ~ \ e p r n c l ~ . ~ ~ ~ i \ ;I pcr5t111 IIL),SL. \ \ I - I ~ L;1rr;ing,ell1ent \ \ i l i \ :I
                                                      i:t)~i~fi~c:or                1%
                            cunlpalij 111ectIIIC cIcli11i~i~11 ~ i i l c [ ) c ~ ico11k:iclor ~ ~ ~ i1Iic 1;1\<..
                                                                     01' i                 d~~i~                      dcr
                            (ic~icrall!. pstrl>lcwho car? \\arks lirr n1nr.r: [hail i!nc conipnlly and ulio co~i~rc>l
                                                                          \\.ill
                            t l l t i r u-c?sb in i~llnclstall ~.cs])cc~s \)c considcrcd iridcl)cr,J~'~it                              IS
                                                                                                                        c~lntri~clol.?r.
                            ; I cornpall) cue~.ciir.:loo much co11tr1)l             over ilm+ a pcrsi)n pcl.li,l~lnsr11ci1,iclh
                            i i n i l ~ ~ c l sctling price.; :inti hca\:il> ~cslriciiny t l i i ~ ~ i n a ~ ideci>it~r~-
                                               in~                                             (31.                   l>g
                            i11aLi11g~ ~ ~ ~ l i o ~ . i r ![lie pc'rxili \ \ i l l 1lrol>ablyl ~ c ~ l ; ~ s ~ 2l ia11
                                           :                   ~
                                                         ll1~1.1 .                                     ~             s
                                                                                                                    i1 c d
                            "cnipJo!~ee" \\ Ilo \\OLLICI tw elili~lcd \neilit~:t.
                                                                                to




                            I.,iquitlatrcl 1)amages iWdoul)lc                                riinnagesl'j
                            Succcssl'ul plnintiSfs arc usually entitled to r e c w c r double the a:noullt 01'
                            i~nprcpcrly            unpairl hack \\.ages. Illis i s called " I i y u i J i ~ i ~ ~ J                    clarr~agcs"arid i*
                            aw~irdciiin lieu crl'interesr. I'luinrilii arc cnri~lcdro rllis c.xLr;l pa! m c n ~                                         iliilc55
                            tllc ~>1:11>1<1!,cr xllt~uIIIC! Ii:l~i:i ~ o ~ ) L ii~itli
                                                      c;tli                                                  I      L~clicCtl~ii~ u.cr~. i ~ l l ~ n \ i ~ ~ k
                                                                                                                                    llwy            l
                                                                                                       I -
                            ~ I I L . !:I\\ :IIILI t.Ii:~t ~ l i ~ , !I>;xiI C ; ~ S ~ ~ I I ~ ; ~ ? ~ ~L r t ~ ~ : n l ?li> c l i c - ~ ~ i ~ ~lt.c!t:
                                                                                                                    1h1,                 I!I~-! z
                            ct!ll~lpl~     ill?,

                            .\lei11 I'criuds
                             1'11~                                               I                  .
                                  T'I.S;\ dc1c.r I I O ~rciluire 11.1c;llpc~.ir>Jh.i ~ ) \ \ c \ c rif ~heri. r1lc::l Ipc.rir,tl.;
                                                                                                              ;it.<
                            perlnit~cil.the.!, ctlunt as cc~niprnsoblc                              u        the
                                                                              hours \\ili.k~tl n l c ~ ~ tlir <111i)lo!       cc.
                            is act~lal[)rclic\.rti t r o n ~               d      If                       a         11~
                                                               ;rcri\.~b,johu~ic's. an enildoy~'c' ~ 1 ~ 1 3gills i ~ n
                            ~ ~ ~ i i ~ i t c ? r ~ ~ ~period.l uttilc I'rcvcl'ro~~i c t i \ c i~irics. [ililc 11c.cJ~io! K
                                                II?C:II ~ r c c                    ;~                    [lie                   I
                            countcd us \\trrk time.

                             \onc.\cn~j)tI.:n~r)loyc.os
                            \i~~l.*\c'l~lp~                                                                            c           rid-
                                               zrnlllo! L,L?. :a-c. gc~icralI! entitled 10 hr. ~ x ~ iI,\i l c r ~ i m c ~ i ~ i l c -
                            a- liaiCuCIl~cis      rcgul.~rraLr ol'pay Ibr .dl 11o11l.sthe> \\ol.k a \ c'r 40 111 O I I ~
                            \\-ark\\-rck ). 'I h t la\\ ba~icallyLISCSL I I O lC515 11) d c ~ c r ~ m iil'sn cn~ployi.eis
                                                                                                             ~ic
                            Inolie.\c.nlbx - ~ l u r !:\SL)      durii.~ (!ou riiusl Incet hot11 rests). GencralI!. iI'!ou
                            get paid b? ~ h IIOLI~. !OLI ril.~.~ i t l ~ ; ~ ~ x c ~ u p \ . e \ t n il'!,ou gel p:iicl ;I
                                                    c                               Ho\vc\cr.
                            sa!ar! !O L Ini;t> ill Ihc cnritlc'd to ~)\crri:nc        hcc;~u;~> c.11soinrtlni. or1 .;:IIJI.)
                                                                                                c\
                            t i l l I ~ a s O d ~cxenllil Julie\ or cl>c :hc! ;ire cnritlud t i ) r)\.rnimc.SCC ".',rc
                                          L       i
                            YOLI E\cI~I]:I" niorc. tic~i~il tI11s issue,
                                                 ((!I,


                            "Off-tllc-C'ltrclc \\'ark" 

                            :llso knawri ns "off'duty" work. Off:the clnck rwrk is work perforn1c.d oulsitlc 

                               ~VI.ITILLI
                            111~'            01 the
                                       J~OLII-s job. Sc7111e cxn~nples                             eil
                                                                        iocludc "hor~~u\hc\~.h,"~
i i p ~ ~ i e ~ ~ l
                            ~nainlcnallce,                      "putting, in" lirr civc~.lirilc).
                                         "sttying lalc" {\vitho~~t                              etc. Alan!
                   -
~ver;irne~awyer.corn Glossary of T'enns Used in FLSA Larvsuils                                                                      Page 3 of 5
                           !:!.St\ i:;lsci involve ernpioyers not capturing ancl conllxnsa~ing      ofl-rl-IC-clock 

                           work by cnlpJo>ccs. Saying solncthing is "0fl'-(he-clock" is u way ai'bceping 

                           tlic 11o~t1.slion1 bei~ig   "ho~rrs                                 aboui
                                                              uorkccl." For mure intor~~l;itir~n
 ~vhat      I~oilrs
                                                   as                              scc
                           si-lould be c o u ~ ~ t c d hours \vorkctl !\vork ~inic), ili~."L\-'lli~{ 1 Inurv
                                                                                                   :Zri:
                           !Vorkcda !,agi.

                           Ol~-~~ilIl
                                          ~                                               cliiployces to hc
                           Notirilrg i r thc I;I.,SA prohibits an employer from rcqirl~.ing
                                                                                             to               tc
                           "on call." Of'-premises 011eijll o .scandlry timc is not req~li~.ed t ~ c o ~ ~ l ~as 
d
                                                                l                                  r
                           \.vol.k tiuic cxccpt u~lder                arid
                                                       ral-u. pcc~lliar unusual circumst;~nccs. 


                           I'a).tlayli
                                           ~rrus!122 paid "ulrcn t111c." xhicli usutlll~tncalrz al tI:c nest
                           FI.SA t ~ n g c s
                                                        lc(i                                      c
                          regrllarly s ~ h c d ~ ~ pa>.day. "L,arc payment" of wages is ~ h cqoivalcn~      of
                          "~ionpii) T I C I I IOI.'IT;I!CS 1?1r lnnsi I-I.Si\ purposes. The I'I.SA docs no?
                                    ~          "
                          picscrihc ho\+ I'reque~ltFwages nus st bi: ?aid. "I'i~y pcrtods" lila! hc ~lit'fer~.nl
                          from "\vorl: neek!;" or "\pork ~x.rioils."

                          Ilegular Itnte
                          I:I.SA c!ve~-tin~es calculated at Linw ilncl onc-haJ1'oTan elnploycc's "regular
                                              i
                          ratc" ol'paq. Sul!jcct L sonrc special sulcs. the rcgi~larritlc i 111~)tnl non-
                                                         o                                                    u
                          oisi.lime colr~pc~lsation                                                r               I?)
                                                             recei-verl by iin eniplo!ec I l i ~ tcorkj diviilc~l the
                                      h~r                              rs
                          ~ 1 1 1 1 nol'lron-ovcrtirne h o ~ ~rhcsc \\ages arc intended LO conlllcIrsitLt. ~ I L I S I
                          wayc "ili~gnicl?~~" b c inci~ulcclin the ~rcpulal-
                                                 ~nrist                                      rate, s~lcliIS protluctix-it!.
                                                                                                           :
                          l ~ o t i ~ ~~ i~~ g ~ * v iIt; >> o r sl~ii't ~ i J ' t ~ ~ ~ ~ i ~ t i ~ ~ l s .
                                      I s : .~. ~ I ,                  ~

                          I<ctaliatiun ancl U i s c r i m i ~ ~ a t i o i ~
                          Tllc F'I.SA prollibils rstaliatitr~lor discrirniaa~iclnin the terms mil conditions
                          ol'cniployrnnlt against emplo! ces for asserting rights tul~clcrtlic l.'I,S!Z. l'hc
                          anti-disc]-iminatiiri~nd anti-~~ctalinriou
                                                a                           pro\.isiolis Iravtl 12~111. id arc
                                                                                                      l
                          intcrprctcd Iibrrall!. in litror of c n ~ p l o ~ ~ c s .

                          S;tIar-y
                          A11 c~iil~loqcc paid O I I a hiiial.! hii~i.ii :.'hi: 11asa "giclrur~rc~d
                                          is                                                       mlrrirnun~''
                                   o
                          an~ount f ~noney                                       in
                                               jihc can count on ~.ecciving \he paychCcl\ liir tuly work
                                                                                                     t
                          period during \\hicli sihc perfijrms "any" work. I'hc "salary bi~siscsr" i s i)nr
                          way ihc t:I,S:$ distinguishes esen:pr from not:csempt cmployccs. No ~natter
                                                                                      ~
                          what an crnp!oycc'sjoh duties arc, ~ i l onl? a f i . c x e p ~ i o s!hc sis
                                                                         h                         ~~
                          noncrernl~    unlcss s/hc is also pilid on a salary basis. 0 1 1 \he olhcr 11a1ld.
                          nlcrcly pa>ing a n cr~iplo?ec11 a salary basis rather tlla~i
                                                          0                                               not
                                                                                            hoiu.ly ~iocs ni;~hc
                                                           ss
                          rhc cmplo!c~- cscrnpi ~ n ~ l cs;hc alsr) pc:li~rl.~ls             high-lc\,cl jol?
                                                                                   ~.clati\clj.
                          duties.

                          Salary 13rtsis Test
                          AII cllrplo) LY is paid on ir salary basis if s!he has a "guaranteed mi~:ilnun~''
                          iunoiit~t   ut'nione~si1lc call COLJIIL 011 1-ccciving ill thc paychcck li)r i111j \vurh
                          1'crioci during which .;:l~c perlilrrrrs ";tnyWwork. 'l'lie ''salary basis tcst" is onc
                          \\a!. tilt. T'I,S,E\ clisringuishcs exempt I'rom nonexempt enlp!r)yccs. No nraucr
                          M ilal air c : ~ ~ p l ec1s.ob d ~ s i e s
                                                 o>                    arc. wilh oilly il Cc\v C X C C ~ L ~ ~ Is:licS is
                                                                                                                 II
                          noncscllllv u~llcss      :-..'Ilc i s rtlsc, paitl on 21 salary basis. 0 1 1 the oli~cr     hal:tl.
                          111i.1.c Ilii! In? an r~r~tl~luycea sala1.j bus;> rc-rthcr l i i a ~ ~
                                 j                                  cjn                                Ihoul.l> <lor:> not nr;lhc
                          rhi. cmploy*c ex.zmpt unless rlhe also prforms relniively h i ~ h - l ~ t .Job
                                                                                                      el
                          dulies.
St:lttb [.an
Sonl~    Srntes lil;l\ h n \ c v\agL.s;~r~i.l
                                            l~~~ii;.i!n\v.;     silnilar r r i  t l i ~ b                      J ~
                                                                                         I-1.S.I.S I ~ II I \~ .
                                                     Irb 1
\\ascr; and htrirrs I:(\\\ are in i~ilili~ii~ii 1.S.2 rci!~ti~.cnlcnr\. d o llril           anti
i~:i'cri;c.t.lc rlic I I.?;\ I-n~l~ln!cc.. prcail! 21-L, lJtillcJ 10 1111: ~ G ~ I L % II~!L~ ' I ! I ~
                                                                 c                                           >
lkJ~*r;il I 5.1or 1i1c11 ~ t ~Li\ ;cY L . \ . I I ~ L I !IIW:> ~ L I \ \ > .\ \ l i i ~ ~ l ~ ~ .I ~ , [.~~ ~~
           k                  S       I                                                      '11.t: W !   , ,




Scttlcrne~~ls
 Ilic IL.S:\ pro\ id's             i~ntl+I                                   li11 >
                                                  l u o r n c c l ~ a ~ r i ~ i ~ lan <nrljlcr>cL.tar1J
cn~plo!.c~, c11te1. I I ~ a I"hirrdir~g," c l ~ l c ~ ~ ~ e Ir .S!I ~ I J ~ I I - I > . 011cI \ in 7etiI~
                tci        ~     C                 s               01' I- ~ l
o rrlaricr iiniler the "~uji~:r\isiori" t h ~    of                                  ll ~it
                                                         L.'.S. l ) ~ p i ~ ~ . ~ i I>[ eL.ahor. 1111. ijtllc.r is
                                                                '
ILI .;c~tlc niilttcr iri tlic coLlrsc. o f liliga~ion.4 s e ~ ~ l c l n crnade \\it11 1)Ol.
              3                                                                      nl
s ~ i l ~ c r ~ i s iornin litigation. \ r i l l he hii~tltny.a n ~ opcraict; ;IS :I \\;ti\,cr o f
                     o .                                                 I
;i~l~lrtio~i:~I t ~ ) . rhc cmpttqcc.
                 c!;~inlh




\\ :ii\,cr
TI-S.:\ ricl113
              ma>-nir: he \ \ ; ~ i \ c . ~ ti!. collccti\ c harg:~itiing;I:rrL5cinenls.
                                            l
                                rillicr\\.isrt. Cjznerally. 311 eml,lo! c t i> critirlt.tl [ r l
C I I : ~ ~ O ) . I I Icontracib. or
                        ~~I
ILSX 1.igllts it)l!c.ctivth1i'~rgainingrigh~s.                                            "I..
                                                          i\liichc\.cr arc 17c~rc~..I ~ I L I ~ c 1,)
ask" for FLSA cornyc\rrsntioti is nlniost nl~~~:l!.si-releval~l.k31l~rrc LIW
                                                             i                           tir
atlniinis~rari\.c
                p:~oc:c~li~rcs   i s irrclc\!anr. CVorli. Most "jol?-~~r.l;~tc~l"iric, ;lrr.
                                                                                          a~:ti\
considcrcd njark untlei ~ I I L - 1'1 .SA. :lnd ITILISI bc C O I I I I ~ ~ I I S ; <~ ~cI~ , o i . ( l i ~ ~ g l >
                                                                                   I ~ ~
                                                                                                                        Page 5 of 5
                                                          IIIC c t n ~ r l i ~ y cnritl \ r l l i c l ~111z
\h'ill.l< i n c l i l d c i ~ c t i \ i \ i c bi r l ) i c l ~
                                                             "hcnclit             r"
C I U ~ ~ O ! . C I"hr,i~\+s h
                   .      (11.          a rci~.;o~~ bclicvc" tlrc crl~llio!c.c is j p t ~ . l ~ j ~ - r l ~ i r r ; ;
                                                 to
                                                                November 9,2009



                                Martin Bihn, Esq.
   Barbara LaWall               Bihn & McDaniel, P.L.C.
Plma County Attorney            2600 North Central Avenue
                                Suite 1775
 Pima Counly Attorney's ORlee   Phoenix, AZ 85004
         32 N. smne Avenue
                   Suite 1400
           Tucson, AZ 85701            Re:     Your Letter to C.H Huckelberry of October 20, 2009

       Phone (520) 740-5600
          Fax (520) 740-5585
                                Dear Mr. Bihn:

                                       I write regarding your October 20,2009 letter to County Administrator,
                                C.H. Huckelbeny concerning our advice that Pima County amend Personnel
                                Policies 8-102(A)(2) and (F)(3). Those policies concern the calculation of
                                overtime pay.

                                            Among other things, your letter to Mr. Huckelbeny, a client-representative
                                of Pima County, makes the outrageous claim that "the CA is punishing PCDSA
                                for its strong support for the CA's opponent in the last election." Not only is this
                                allegation baseless, the advice of this Office that the Fair Labor Standards Act
                                does not require the inclusion of vacation, sick, and holiday hours in determining
                                overtime pay, is shared by other knowledgeable lawyers. Please see the attached
                                d e f i ~ t i o n f FLSA "Hours Worked" utilized by the law firm of Lee & Braziel,
                                                o
                                LLP - a Dallas, Texas plaintiffs' firm specializing in labor and employment law.

                                         Also without merit are your allegations that this Office has offered
                                erroneous legal advice on two prior occasions. Regarding your fust allegation,
                                the development of Pima County code amendments to allow deputy sheriffs to
                                participate in the meet-and-confer process raised potential conflicts of interest
                                between the Sheriff and the Board of Supervisors. We appointed outside counsel
                                for both and the amendments were adopted. We never opined that the deputies
                                could not participate in the meet-and-confer process. In the second matter,
                                concerning whether officers i the command structure could participate in union
                                                               n
                                activities, we agreed that sergeants could participate in the meet-and-confer
                                process, but that higher ranking officers could not, except if they formed their
                                own bargaining unit. Your lawsuit was dismissed when the legally permissible
                                code changes were adopted by the Board of Supervisors. A less confrontational
                                approach by you would have achieved the same result without the need for
                                litigation.
Martin Bihn, Esq.
November 9,2009
Page 2

       Because the allegations and accusations of your October 20th letter are so
completely lacking in merit, you have violated the Rules of Professional Conduct,
Ethical Rule 4.l(a) which prohibits the making of false statements to third persons
and Ethical Rule 4.4(a) which prohibits tactics that have no purpose other than to
embarrass or burden opposing counsel. The latter Ethical Rule also prohibits the
unwarranted intrusion into the opposing attorney-client relationship, which your
attempt to discredit this Office and its advice does in no uncertain terms. See
Comment [l] to E.R. 4.4. Furthermore, your conduct also violates Rule 41(g) of
the Rules of the Supreme Court which requires members of the bar to "avoid
engaging in unprofessional conduct. . . ."

      For these reasons, I hereby demand that you immediately and
unequivocally retract the statements in your letter of October 20, 2009 to the
County Administrator. Your ethical obligations require you to do so.

                                          Sincerely,
                                                              \

                                          Barbara LaWall
                                          Pima County Attorney



Attachment

cc: 	   C.H. Huckelberry, Pima County Administrator
        Amelia Craig Cramer, Chief Deputy County Attorney
        Chris Straub, Chief Civil Deputy
                                                                                              Page 1 of 1



               DOES YOUR BOSS MAKE YOU W Q R K OFF T H E GLOCK?
                  DO YOU GET "CONP TIME" RATHER TH4N OVERTIME PAY?
                        flO YOU GET PAID A SALARY W H I L E DOING A JOB THAT SHOULD
                                                                      PAY O V ERTIME?

                         THENYOU MAY BE ENTITLED TU THOUSANDS
                            OF DOLLARS 1M U N P A I D WAGES A N D
                           OVERTIME       - PLUS    ADDITIONAL DAMAGES!

    WHATARE YOUR RIGHTS TO WAGESAMU ~ V E W I M E ?                        ARE YOU EXEMPT?
    WHATHOURS COUNT A 5 *HOURS WORKED'                        5 COMMON V E T Y T I M E
                                                                         ~         MISTAKES
    F R E Q U E ~ Y QUEST ~ O N S
                  ASKED                                     W~EWPF STATUS SPECIF~C
                                                                           OF          JOBS
    L ~ S T RSA TERMS
          OF                                                   FLU OW OCIR QUESTIONNAIRE
    AWUT US                                                                     CONTACT US
Lee 8r Bra~iel. LLP is a law f i m ~ lirlps employees o b b i ~the unpaid
                                   that                         i
wages, overtime, and other benefits to LV-lihich are ent~tled. invite
                                                they             We
you to contact us to discuss any -
                                - potential claim for overtime or unpaid
wages you may have. We litigate claims throughout 'l'exas and across
the country.

This site contains general information about your rights to overti~lihie
                                                                       and
~mpaid  wages. We hope you find it informative. This site is not intended
to ~.>rovidrlegal advice or to create an attorney-client relationship.

.I. Derek Braziel oversees the firnl's wage and hour practice. He is
Board Certified in Labor and Employment Law by tlie 'l'exas Board of
Legal Specialization

Lec & Braziel. LLP is located at 1801 N. Lainar St., Suitc 325: Dallas,
1 euas. 75702.
F ?
OvertimeLawyer.com - Glossaq of Terms Used in FLSA Lawsuits 	                                                      Page 1 of 5




                          Attorneys' Fees
                          Successful PLSA Plaintiffs are entitled to an additional award for "reasonable
                          attorneys' fces" k1us reimbursement for many out-of-pocket expenses
                          incurred in litigating the lawsuit). Employees are not responsible for paying
                          an eniployer's allomeys' Sees unless their lawsuit is liivolous.

      YWR RIGH'V~ 	   Compensatory Time ("Camp. Time")
           w
      &% Y ~.~~~~ 	 Employers often tell enlplopees they will get "Comp. Time" instead of
      @@@f%% 	        overtime pay. Comp. time instead of cash for overtime is not generally
      cWIRQ1.  @@TWS>permitted by non-go\,ernmeiit employers. Non-government employers who
      fkQs; 	         have such systems are almost always in violation ofthe law and owe
      $Kclra;lS. ~S 	
               ~      enlployees for unpaid overtime. Under certain circumstances a public
      PLSA, TEi&d?$ 	 employer (like the goveniment) may pay (at least some) overtime with "comp.
      QUEST,,Q~#~~~$  time" instead of'cash. See "TheMvlh of Comp Time" Ibr a Inore detailed
      AaOul US 	      discussion
      coPrTser us         Department of Labor (DOL)
      HWE. 	
                          The DOL is the federal government agency in charge of enforcing the Fair
                          Labor Standards Act. If a person docs-not wait to hire a private attorncy to
                          enforce their r~ghts, DOL may be able to assist the employee, though the
                                              the
                          DOL does not always bring suit on behalf of employees.

                          Duties Test
                          For employees to be exempt they must meel both the salary test and the
                          "duties test." The duties test requires that mlployees perfcxm duties that are
                          considered exempt. Exempt duties usually hivolve relatively high-level work
                          and is generally not work that only requires the application of skill. For a
                          more extensive discussion of exempt work duties, see the "Axe You Exem@"
                          page.

                          Exempt Employees
                          Exempt eniployccs are not entitled to bc paid overti~ne.       'I'hey arc called
                          "exempt" because they are exempt from the overtime or minimum wage (or
                          both) requirements of the FLSA. Generally. these employees are bona ficle
                                                          or
                          executive. aclrninistrati~, professional nnployees. They illust be paid on a
                          s
                          ..~a l q ...l.or.fee)basis and must perforin the dutics of an..e~c~npt..e~np.loyec.
                                                                                                           If an
                                          is
                          en~ployee paid on an hourly basis (with very few exceptions) he is not an
                          Exempt employee, hut is a Nonexe~npt          employee. See " k Y o u Exempt" for
                          inore detail 011 this issue.

                          Fair Labor Standards Act
                          Federal labor law of gcneral aiid nationwide application, including Overtime.
                          Mini~~lum  Wage. Equal Pay Act. Also k n o w as the FLSA. or the "Ciarcia
                          Act." Located at 39 USC$Q201 et seq.

                          Hours Worked
                          FLSA wages are deteilnined by the number of hours a11 en~ployee  actually
                          works. All time actually worked counts. but only time actually worked counts.
'OvertimeLawyer.com - Glossary of Terms Used in FLSA Lawsuits                                                   Page 2 of 5
                          "Hours not worked" are not governed by the FLSA, even if they are
                          considered "work time" or "paid time" by the employer. Thus, "offthe c,lockl'
                          work counts, but holidays, sick days, or other days off do not count as FLSA
                          hours worked. Other hours worked but not counted by employers sho~dd      be
                          paid. For a nlorc detailed discussion of what is and what is not "hours
                          worked" see the "What Are I-Iours WorI<i:ci?"page.

                          Independent Contractor
                          Ail independent contractor is a person whose work arrangement with a
                          conlpaiiy nieet the definition of independent contractor under tile. law.
                          Generally. pcople who can works for Inore than one company a11d who control
                          their work in allnost all respects will be considered independent contractors. Tf
                          a company exercises too much conlrol over how a person perhnns their job
                                                                                            decision-
                          (including setting prjces and heavily restricting or elilniiiati~ig
                          making authority, then thc person will probably bc classified as an
                          "employee" who would be entitled to ovcrtime.

                                                --
                          Joint Employment Dual Employment
                                                                                same job for two
                          "Joint employment" refers to employees urorkinp t l ~ e
                          "different" employers. All hours must geilerally be aggregated, and each joint
                          employer is equally responsible for wages, unless they are truly "separate and
                          independent." "Dual employment" refers to en~ployees    performing separate
                          jobsfol. Ihe same employer. All hours must generally be aggregated for
                          purposes of FLSA overtime wage computations.

                          Liquidated Damages ("double damages")
                          Successful plaintiffs are usually entitled to recover double the amount of
                          improperly unpaid back wages. l h i s is called "liquidated damages" and is
                          awarded in lieu of interesl. Plaintiffs are entitled lo this extra payn~cntunless
                          the employer can show they had a good faith belief h a t t h e j ~were following
                          the law and that the); had reasonable grounds for believing they werc
                          cornplyi~ig.

                          Meal Periods
                          The FLSA does nor require lneal periods. However, if there are meal periods
                                                                                       the
                          permitted, they count as conlpensable hours worked u~lless the enlployee
                          is actually relieved from active job duties. If an employee actually gets an
                          uninterrupted meal period. while free from active duties, the time need not be
                          countecl as work time.

                          Nonexempt Employees
                                                    are
                          Nonexempt e~llployees geiierally entitled to be paid oveiTiine (lime- and-
                          a- half of their regular rate of pay for all liours they work over 40 in one
                          workw-eek). 'The law basically uses two tests to determine if an employee is
                          nonexempt - salary AND dtdies (you must meet both tests). Generally. if you
                          get paid by the hour, you are nonexempt. However, even if you gel paid a
                          sa!ayy you may still be entitled to overtiine because even someone on salary
                          still has to do exempt d , u t i s or else they are entitled to overtime. See " A n
                          170u Exenla" for Inore detail 011 this issue.

                          "Off-the-Clock Work"
                          Also known as "offduty" work. OSfthe clock work is work perl'ormed outside
                          the nolmal hours of the job. Some exainples include "lionlework," equipnlent
                          maintenance, "staying late" (without "putting in" for ovcrtiine), etc. Many
OvertimeLauyer.com - Glossary of Terms Used in FLSA Lawsuits                                                   Page 3 of 5
                          FLSA cases invo1i.e enlployers not capturing and compensating off-the-clock
                          work by employees. Saying something is "Off-the-clock" is a way of keeping
                          the hours lion1 being "hours worked." For more inforination about what hours
                                                     worked (work time), see the "What Are Hours
                          should be counted as ho~~i-s
                          \?'ork.cdn k'agc

                          On-Call
                          Nothing in the FLSA prohibits an cclnployer from requiring cmployccs to be
                                                                                                       as
                          "on call." Off-premises on call or standby time is not required to be co~uited
                          work tinlz except under rare. peculiar and unuaual circumstalces.

                          Paydays
                          FLSA wages must be paid %hen due." n~hich    usually means at the next
                          regularly scheduled payday. "Late payment" of wages is the equivalent of
                          "nonpayment" of wages for most FI.,SA purposes. I'he FI.,S.4 does not
                          prescribe how frequently wages must be paid. "Pay periods" may be different
                          from "work weeks" or "work periods."

                          Regular Rate
                          FLSA overtinle is calculated at time and one-half of ail einployec's "regular 

                          rate" of pay. Subject to some special rules, the regular rate is tlic total non- 

                          overtime compensation received by an employee (for work) divided by the 

                          number of non-ovcrtin~e   hours these wages are intended to compensate. Most 

                          wage "augments" must be included in the regular rate, such as producti\lity 

                          bonuses, longevity pay, or shift differentials. 


                          Retaliation and Discrimination 

                                                                            in 

                          'The FLSA prohibits retaliation or discriminatio~~ the terms and conditions
                          of employment against e~nployees asserting rights under tlie FLSA. The
                                                               lor
                          anti-discrimination and anti-retaliation prov~sionshave teeth. and are
                          interpreted liberally in favor of employees.

                          Salary
                          A11 employee is paid on a salary basis if s h c has a "guaranteed minimurn"
                          amount of money sihe can cou11t on receiving in the paycheck for riny work
                          period during which s/he performs "any" work. The "saIay basis test" is one
                          way the FLSA distinguishes exempt from nonexempt employees. Xo matter
                          what an employee's job duties are, with only a few exceptions sihc is
                          nonexempt unless s h e is also paid on a salary basis. On the olher hand,
                          merely paying an employee on a salary basis rather than hourly does not make
                          the employee excmpt unless slhe also performs relatively high-level job
                          duties.

                          Salary Basis Test
                          An employee is paid on a salary basis if slhe has a "guaranteed minimum"
                          miomlt of money s h e can count on receiving in the paycheck for any work
                          period during which sihe performs "any" work. The "salary basis test" is onc
                          way the FLSA distinguishes exempt from nonexenlpt employees. No rnatter
                          what an employee's job dutiez are, with orlly a few exceptioils s h e is
                          nonexenlpt unless s h e is also paid on a salary basis. On the other hand.
                          merely paying an ernployee on a salary basis rather than hourly does not ~nalte
                          the employee exempt unless s h e also performs relatively high-level job
                          duties.
OtrertimeLawyer.com- Glossary of Terms Used in FLSA Lawsuits                                                   Page 4 01 5
                          "7(K)" Exemption
                          Section 207(a) of the FLSA requires employers to pay their e~nployees
                          overiime coinpensation for all hours worked over 30 hours per week. Section
                          207(k) provides a potential limited exen~ptioil  from the overtime provisions of
                          thc FLSA for public agency c~nployces    who are engaged in "fi1.c protection
                          activities" or "law enforcement activities." In essence, "alteimative 7(k) work
                          periods" change the nornlal seven day. forty h o ~ uwork week to "work
                          periods" of froin sevcn to twcnty?eight days, with overtirile owed for I~ours
                          worked over a "threshold" per work period, which are larger than forty hours
                          per week.

                          State Law
                          Some States may have wages a i d hours laws similar ro the FLSA. State law
                          wages and hours laws are in addition to FLSA requireinents, and do not
                          supersede the FI:..SA. E.mployees typically are entitled to the benefits of the
                          federal FLSA or their State. wages and hours laws, ~ ~ h i c h e vare better.
                                                                                            er

                          Statute of Limitations
                          The i~ormal  FLSA statute of limitations entitles eiilployces to recover back
                          wages beginning two years before a complaint is tiled and extending fonvard
                                                                                is
                          until the case is resolved. The statute of li~nitations three years if thc.
                          employer "willfully" or "recklessly" disregarded its FLSA obligations. An
                          cinployee's FLSA ripllts heconlr "vested" only by the filing ol'a complaint in
                          court.

                          Settlements
                          The FLSA provides tu70and only two inechanisins for an employee anti
                          employer to enter into a "binding" settlcment of FI,SA claims. Onc is to settlc
                          a matter under the "~uper\~ision" the U.S. Department oLLabor. The other is
                                                               of
                          to .settle a matter in the course of liticration. A settlement made with DOL
                                                                L,   



                          supenrisioii, or in litigation. will be binding, arid opcrates as a waiver. of
                          additional claims by the employee.

                          Straight Time
                          The FLSA has lilllited application to straight time wages, except for inininn~m
                          wage laws. The only tiinz the FLSA requires straight tiine pay at an
                          employee's regular rate is when the employee has worked FLSA overtime.

                          Training Time
                          'Training tiine is generally compensahle working tiine, lsith exceptions.
                          'J'raining time is not working time if it is specifically required by the law of a
                          "higher jurisdiction" as a condition of mniployment. Training time is also not
                          \working time if it is (a) outside of the employee's regular working hours; and.
                          (b) strictly voluntary; and. (c) not directly relatcd to the employee's job; and
                          (d) the employee inust not perform any (other) productive work during the
                          training.

                          Waiver
                          FLSA rights may not be waived. by collective bargaining agreements.
                          employment contracts, or otherwise. Generallj, ail cmployee is entitled to
                          FLSA rights or collective bargaining rights. n~hichever better. "Failure to
                                                                                  rue
                          ask" for FLSA compensation is alnlost always irrelevant. Failure to use
                          adininistrative procedures is irrelevant. Work. Most "job-related" activities are
                          considered work under the FL,SA. and must be compensated accordingly.
0vertimeLawyer.com - Glossary of Terms Used in FLSA Lawsuits                                           Page 3 or J
                          Work il~cludes
                                       activities which "benefit the employer" and which the
                          employer "knows or has reascm to belie\eVthe employte i~ psrforrning

                          Work Weelrs
                          'fhe FLSA rcq~ires wagcs duc be calculated on a work ueck by work
                                              that
                          weel. hasis. 4 work week is seven consecutive days. Work schedules must he
                          translated into work weeks to determine FLSA wages due. (Some employees
                          may havc work periods different from seven days.)
                                              OFFICE OF THE

                               Pima County Attorney                                    Barbara LaWall
                                                                                     PlMA COUNTY ArCORNEY
                                  Civil Division
                                               32 N. STONE
                                                SUITE 2100
                             Tucson, Arizona 85701-1412
                                                  740-5750
                                              (520)
November 9.2009                              FAX (520)620-6556




Mr. Michael W. Storie 

Lmv Qflces rdl\.lichael W. Slorie, P. C. 

3 12 S. Third Ave. 

Tucson, Arizona 85701 


       RE: Prrqosed Changes to Pimu Cblrnty Personnel Policy8-102(A)(2) und (F)(3)

Dear Mr. Storie:

        This letter follows up on your appearance before the Board of Supervisors at its
November 3, 2009 meeting regarding the above reference Personnel Policies. 'fhe Pima County
Sheriffs Deputy Association (PCSDA) opposes the proposed changes to the Personnel Policies.
This Office and the County Administrator recommend that the Board adopt the changes as they
are required to conform to the law. You told the Board that reasonable minds could differ
regarding whether the proposed changes are required. The PCSDA, however. has not yet
articulated the legal reasoning supporting its position on this matter in a way that this Office can
meaningfully utilize to reassess its recommendation to the Board. Accordingly, to determine if
reasonable minds can differ on this matter, I would appreciate your answers to the following
questions:

        1 . 1 am sure you would agree that the federal Fair Labor Standards Act requires the
County to pay ovemme to non-exempt ("hourly"j employees. The overtime provisions are set
forth in 29 U.S.C. $207(a)(l).(e)(2).(e)(5). and (e)(6) which provide as follows:

       (a) Employees engaged in interstate commerce; additional applicability to
       employees pursuant to subsequent amendatory provisions.
               (1) Except as otherwise provided in this section. no employer shall employ
       any of his employees who in any workweek is engaged in commerce or in the
       production of goods for commerce. or is employed in an enterprise engaged in
       commerce or in the production of goods for commerce, for a workweek longer
       than forty hours unless such employee receives compensation for his employn~ent
       in excess of the hours above specified at a rate not less than one and one-half
       times the regular rate at which he is employed.
Mr. Michael W. Stone
November 9,2009
Page 2



       (e) "Regular rate" defined. As used in this section the "regular rate" at which an
       employee is employed shall be deemed to include all remuneration for
       employment paid to, or on behalf of, the employee, but shall not be deemed to
       include-



              (2) payments made for occasional periods when no work is performed due
       to vacation, holiday, illness, failure of the employer to provide sufficient work, or
       other similar cause; reasonable payments for traveling expenses, or other
       expenses, incurred by an employee in the furtherance of his employer's interests
       and properly reimbursable by the employer; and other similar payments to an
       employee which are not made as compensation for his hours of employment;



              (5) extra compensation provided by a premium rate paid for certain hours
       worked by the employee in any day or workweek because such hours are hours
       worked in excess of eight in a day or in excess of the maximum workweek
       applicable to such employee under subsection (a) or in excess of the employee's
       normal working hours or regular working hours, as the case may be;

              (6) extra compensation provided by a premium rate paid for work by the
       employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth
       or seventh day of the workweek, where such premium rate is not less than one and
       one-half times the rate established in good faith for like work performed in
       nonovertime hours on other days;

       It would appear from these provisions that the County's obligation to pay overtime would
not accrue unless and until the employee actually works in excess of 40 hours in a workweek. Is
there anything in any other provisions of the FSLA, or in any other applicable law, that would
require the county to pay overtime to its employees for any time periods worked less than 40
hours in a workweek? If so, please cite the provision and discuss its applicability to the proposed
amendment.

      I have attached for your review a Department of Labor Fact Sheet entitled "Hours
Worked Under the Fair Labor Standards Act" and information from the website of Lee &
Mr. Michael W. Storie
November 9,2009
Page 3

Braziel, LLP - a Dallas Texas plaintiffs' firm specializing in labor and employment law. With
regard to the latter, please see their definition of "Hours Worked."

        2. Your answers to question 1 above are important because A.R.S. 638-610 states as
follows:

        State or county officers, employees, members of boards and commissions, and deputies,
        stenographers, clerks and employees of any such officer, board or commission, or of any
        institution, shall receive the salary provided b y law, and shall not, under any pretext,
        receive any salary or emolument in excess ofthe salary soprovided. (Emphasis Added.)

      On its face, this statute would appear to limit the ability of the Board to compensate
employees other than "by law." Does this statute apply to the County? If not, why not?

        While I await your answers to these questions, County staff is assessing how other
jurisdictions are computing overtime for their non-exempt employees. I would certainly
appreciate any insight you would have in this regard as well.




Chief Civil Deputy County Attorney

cc: 	   C.H. Huckelberry, County Administrator
        Martin Bihn
U.S. Department of L a b o r
L J n l p l u y n ~ e l i S tandards A d n ~ i n i s t r a ~ i o ~ i
                          t
U :ire    tlour Di\;ision
      nt~tl                                                                                               , ~:.. .                     .,..
                                                                                                                                      .-      >:

                                                                                                                 :',   .\   ., <. '   . .. .
                                                                                                                                        . *



Fact Slieet #22: Hours Workrtl Untlcr the Fair Labor Stantlartls .Act (FLSA)
This fact sheet provides general infortnalion concerr~ing              what constitutes cornpensable time under tlic l:l-SL\.
                                                                          . .
The :\cl requires t h ; ~r~nplo!ees 1 1 1 ~ r~r 1 z i i c at Icclsl the pu~.;~!!;+~!.ji;~ and ma! nor hc cmplc,!ed Ibr Inore
                          ~                     c
th:ln 40 hours in a \\c.ek \vithout receiving ar least one and one-hxlf times their rcguI;~rralc.; 01'p:1! I'or the
    cr:~:j& h~lurs.Ihe amount employees should rccci\c cannot be determined I\ ithuut knot$ing the number ol'
hours \\orkcd.

Definition o r "Employ"

By statutory detinitinn the term "employ" includes "to suffer or permit 10 tvork." The rnorkweek orilinaril!,
includes all tinic during which an e~nploqec s ~iccessnrily
                                                i                       to
                                                               rc~luircd be on the emplo!er's premises. on dut! or
                                                                                              on
at ; prcscrihd u o r k place. "H'orkday", in gcncral. means the pcriod bet\vcen the t i ~ n c ;~n) particular day
   I
        i
u h c ~sucli cnipln!cc comnlenccs his:ller "principal nctivit!," and lhc time on tliat day i ~ \\hich hckhe ceases
                                                                                                  t
                                                                                                                    shift,
sucli principal activity 01.acti\-ities. The workday may tIicreli)rc be longer than tiis c m p l o y c ' s schcdi~led
hours. tour aftluty. or production line time.

Application of Principles

E~nployees    "Sutlkred or Permitted" to work: Work not requested but suffered or permitted lo be performed is
work time t l i ; ~niust be paid for by the emplo)er. I-or example. an employee may voluntarily continue to work
                       ~
                                                                                                                     hours are
at tlie end o f t l i e shili to finish an assigned h s k or to correct errors. The reason is ilnmalcrial. ' l ' l ~ e
u o r k time and are co~npcnsnble.

Wniting'l'imc: Whether \\ailing time is hours marked under the Act depends upon tlie particular
circunistances. (ienerall!. the Iacrs may sho\v tliat the employee was enzaged to wait (\vhich i s work time) or
the facts may >Iio\v that the employee was waiting to be engaged (\vhich is not \ w r k tinic). l'or cua~nple.
                                                                                                             a
secretary \\hu reads a book while waiting for dictation or a fireman who plays checkers \\liilc \\siting for nn
alarm is working during such periods o f inactivity. 'l'hese employees h a w heen "engaged to \\ail."

On-CaIl'I'ime: .An e~nplo!ee who is required to remain on call on the c.mplo)er4s pwmiscs is \\.orking \rhile
"on call." A n cmplo!re \vho is required to rcmain on call at home. or who is allo\red to lca\c a message ushere
heisl~c be reached. is not u o r k i n g (in most cases) while on call. Additional co~lslraints the employee's
       can                                                                                    on
freedom could require this time to be compensated.

Hcst and &leal I1eriods: Rcst periods ol'short duration. ~ ~ s u n l20 ~ninutes Icss. are common i n industr?.
                                                                    ly        or
(and promote the efficient!. o f the emplo!ec) and are custo~naril! paid for as working time. These short periods
niust be ct1i1ntc.das hours worked. Unauthorized extensions of' authorized \\.ark hrcaks need not be counted as
hours worked whcn the employer has expressly and unambiguo~tsly         communicated to the employee that the
authorized break n i n only last for n specific length oftime. tliat any extension o f t h c break is contrary to tlie
employer's rules. and any extension o f the break w i l l bc punished. Rona fide ~ n e aperiods (t).pically 30 minutes
                                                                                         l
or more) gencrall- need not be conlperisatcd as work time. The enlplo!-ee must be coniplctcl> relieved from
duty for the purpose of eating regular ~neals.  'l'hc c~nployet. nut relieved ifhe/slie i s required to perform an>
                                                                is
duties. \vhcther active or inactive, while enling.
Sleeping Time ancl Certain Other Activities: A n elnployec who is required to be on duty for less than 24
hours is working cvc11tliot~ph    lirislie is perniitted to slccp or engage in othcl. pcrsonal actik itics \\lien not hus!.
An c~nployee    required to be on dut) li>r 74 hairs or Iiiorc may agree \\ith [he employer to escludc from hours
worked bona tide regularly scheduled sleeping periods oF not niorc than 8 hours. provided adr'quate sleeping
facilities are furnished by the employer and the employee can usually enjo!- an uninterrupted night's sleep. Yo
                                 at
reduction is permitted ~ ~ n l e s s least 5 hours o f sleep is taken.

I.ect~~res, Meetings and Training Programs: Attendance at Iccturcs. ~neetings.      training proglxnis and similar
activities need not bc counted as working time only i f four criteria are met. n:~mcly:it i s outside normal hours. i t
is voluntary. not job related, and no o[lier work is concurrently pt.rS~>rrned.

'l'ravcl 'rime: 'l'lic principles \\~liichapply in dctcr~iiining                   spcnt in travcl i s coml>ensahlc time
                                                                \vlicthel- t i ~ n c
depends upon the kind o f travel involved.

Home to Work'l'ravel: A n employee who travels Sroln liornc bcf'orc tlie regular tvorkda). and returns to hisiher
lio~nc the end o f thc workday is cngaycd in ordinal? home to work travel. ahich is not \\ark tir~ic.
     at

Home to Work on a Special One Day Assignment in Anothcr C i h : A n eniplo>cc who regularl) uorks at a
tixcd locatioli i n one city is gi\zn a special one day assig~iment another city and returns lhu~iie same da!.
                                                                      in                                     tlie
-l'lie tirnc spent in traveling to and returning horn the other tit?. is tvork time. exccpt t l i a l ~ h c~nployer11a>
                                                                                                           r      1
dc.duct:not count that time the employee would nor~nally      spend commuting to he regular \vork site.

Travel That is All in a Day's Work: Time spent by an employee in travel as part o f their principal activity.
such as travel from job site to j o b site during the workday. is wo1.k time and must be counted as hours worked.

                                           I
Travel Away from tiume Comrnl~nity: 'ravel that kceps ;in employee auay liom home ovcrniglit is travel
ilwa! from home. 'l'ri~vel  away from home i s clcarl) hark t i ~ i i chen i t cuts across the employee's ~borkday.The
                                on
timc i s not onl! hours \\.c~rked ~.eyular\\orking d a s during normal %orking hours but also duri~ig
ccl~respondinp   hours o n nonnorking da\s. As an cnlorcernent polic! the Division \\-ill not consider as \\.or); time
that time spent in travel a\\ay from humc outsids o f regular norking hours as a passenger on an airplane. train.
boat. bus. or automohile.

'I'ypical Problems

Problems arise when employers Fail to recognize and count ccrti~in       hours worked as compensnblc hours. For
example, an employee who remains at hisfher desk while eating lunch and regularly answers the telephone and
refers callers is working. '1-his time must be counted and paid i l s conipensable hours worked because the
employee has no1 been completely relicved fro111duty.

Where to Obtain Additional Information

For additional information, visit our Wage and Hour 1)ivision Website: i ~ t l ~ ~ : / ! s,\ ~. \~\ \ ; t ~ c t ~ c ~ ~ r r . t I ~ ~ l . p o v
andlor call our toll-free information and helpline?available 8 a.m. to 5 p.111.in your till~c.            zone. 1-866-
4C'SWACE (1-866-487-9245). This publication is for general inforniation and is not to he considered in [lie
same light as orticial statements o f position contained in the regulations.

t.'.S. Dcpartmrnt o f Labor                                                                                       I-866-4-I.'S\\'AGE
t'ri~nces Perkins Iluilding                                                                                  '1 I Y : I-XhO-IX?-924.;
200 C:ilnsritution Zvsnue. N \ Y                                                                                          (:nnt:ict Ls
L\';i.;l~i~lgton.LC 20-1 10
                  I'
                                                                                                                                      Page 1 o f 1


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,. ... .                                  ES YOUR BOSS M.AKE YOtJ WORK OFb- THE CLOCK?
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                                           D O YOU G E T " C O M F TIME" HATHER THAN OVERTIME P h Y ?
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                                                 DO YO11 G E T PAID A S A l A R Y WHILE DOING A J O B THAT SHOULD
                                                                                                   I'AY O V E R T I M E ?

                                                    THEN Y O U M A Y B E ENTITLED T O     THOUSANDS
                                                         O F DOLLARS I N U N P A I D W A G E S A N D
                                                       OVERTIME - PLUS ADDITIONAL D A M A G E S !


                         WHATARK YOUR RIGHTS 10 WAGES AND OVEHIIME?                                              ARE YOU EXEMPI?
                         WHP-THOURS COUNT AS "HOURSWORKED'                                                              M
                                                                                                     5 COMMONOVERTIME I S ~ A K E S
                         FREQUCNTLY      ASKED QUESTIOP~';                                     EXEMPT TATUS SPECIFIC JOBS
                                                                                                          S      OF
                         LIST C)F F L S A TERMS                                                       FILL CUT OUR CIU~.STIOX~~AIRE
                         ABOUT US                                                                                     CONTACT US
                                                   I         I l c I e~i~plt>!ecb 
 the ~III[J~II~
                   Lcc k I3rii/.icl. 1.1.1' is ii IU i i r n ~ I ~i ~l p ~                CI~I~~IIII
                   \r;tges. o\:~'rli~hc'. olhcr hcr~clirs \ \ l ~ j c h
                                         ilncl                  10         the! arc c~ilrrlcd.Wc i r ~ i\ r ~ - 

                   !oil ti, c0111nc'lus to discu* a n. p u t ~ ~ l t i claim lilr I,\ 
 c.r!inrc. or unoaiil

                                                         \ .           itl
                   \\:igc.\ !o i i III li:~\ \\'c litig;~tecI:ii~iis~Iiroi1g110~11 
 :tiid ac'r,]?, 

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                   :he cuurxr! 





                   .I.I k r c k t 3 r a ~ i c~)vcl.sces lirm's \\age :uld hour pr;icticc. I-lc is 

                                             l        the
                   Hoard C'crlilictl ill l.ubnr and l i l l ~ p l o y ~ n c I..:lu- h? r l ~ c c
x e s I3oar.d 01'

                                                                            nt               I
                   legal Spcciali~~tion 

OvrrtimeLawyer.com - Glossary of Terms Used in FLSA Lawsuits                                                                                 Page I of 5




                                  GLOSSARYF TERMS USED IN FLSA LAWSUITS
                                         O

                                  Attorncyst Furs
                                  Successf~ll                                            tu                    rd
                                                11.S.-\ Plaintiffs arc c~lti~lccl an adclirltinal : ~ \ \ r ~ for "seasonable
                                  attornc!~' fccs" (plu.; rcinibursc~ncn~ nlan) out-tit'-pochcl csl>cr~sci
                                                                                     tijr
                                  incurreit i n litigiitirrg the l a \ v s ~ ~ iI:rilplo!ses arc nor rcsl3t1nsiblc for pa! in$
                                                                                 r~.
                                  an enlploqer's ;lttorneys' t'ccs unless thcir la\v.;ui~is li'ivolt~us.
      YOUR    RIGHTS        Coml>ensutcw-!. 'rir~tc     ("C'nmp. I ' i ~ r ~ r " ) 

      ARE          ExEwPT?  1Ilnplv! cr-2 i~licn c ~ ~ i p l ~ ~ y!Ilc! . ,\ \ i l l g t . ~
                                                  (ell                     c.c               "C'unip. I ~ I T I L , " i~i.steaii 
    ol'
      HOURS WORKED          o \ crli~ue  pa!.. C'lxnp. time i~ls~ei~cl       ofcasll for v\crtirnc i> ntil pttncrall!
      COMMON MISTAXES pcr~nirrt'd Ilcrli-gi)\.erilmcril crnplo!a.s. Yon-grr\ ernrncnl e~nl!lo>cr.;\\ho
                                          b!
      FAQS                  II:I\ c SLICII>! btc11.1~ LIIITI.'~)>~;II\\:I!'S
                                                    arc                         i l l . iu1i11i011 I . t l i ~ , !:I*.*:IIILI O \ \ C
                                                                                      s          tl

      SPECIFIC JOBS         c.nipla!.et.s 1b1- 1111paiilovcrlitlic. Incter cerrain circun1~tnncc.s puhlic                 a
      FLSA TERMS            cmploycr (like 1 1 1 po\crnmcrlr I tiiny pa!. (at leas1 s o m c ~
                                                    ~                                                             o\crrirnc \\it11 "cclmp.
      Q u ~ s r l o n n ~ i linll:" ir~srsadcrl'casll. Set: "Thc&l! ~h 11I'Conlp I ilnc." liir .I Inore Jctailcil
                              ~~
      ABOUT US              discussion
      CONTACT US
      HOME                        I ) e p a ~ - t r n ~ ol'1,nbor (DOL)
                                                        nt
                                  '1-llc 1101. is the l'cdcrul yovcrluilcnl agzncy in cI1~1r.g~.                    ~ Fair
                                                                                                    ~)I'cnlbrcillg l l c
                                   I.;lhor Stanclilrds Act. I f a person clots not \\a111 to t ~ i r c private utlorrlcy lo
                                                                                                      :a
                                  c'ntorcc thcir rights. the D01. m:iy lhc able to assisl lllc cmliloyce. t110~1gli      the
                                  1 W L . dues no1 al\\,ays hring suit or1 hchalfof ~ t i l ~ ) l c \ \ ' ~ i : \ .

                                  Duties Tcst
                                  Lor cnll~l(~!cc.s0 he c.sc.riip(l l i q IIILISImeet bill11 the .;;liar! rest a:xi lllc
                                                    1
                                  "durici lesl." I he ilutics tcsr rc.quirc., 111atcrl~plo!ces pcrll~rni          duties r l ~ i l la rc
                                  co~~sidcl.cd ~*x~.lnpt.i:sc.riil>r clu1ic.s :15ually in\ a l \ c r-clati\cl! high-lc\ c.1 \\orb
                                  and is grllcrali> \lot work thal oni! I . C ~ I U ~ I . L1S1 1 ~ ~ p ~ ~ l i ~ a t i r ~ r ~ u
                                                                                           '     L             ilf>ki/l.bor
                                  Illore csrc~isi\-c.                            \\-ork
                                                    discussion o l ' c x e ~ ? i p ~ durics. ice t l l t ":\~.c. J.ou I;uc!np~"
                                  page.

                                  E x e n ~ p Employees
                                                t
                                  Exempt c.mplo\.;ees arc not cntitlctl to bl: paid o\;cl.tinlc'. 'I'liey arc callc~l
                                  "exempt" hccausc rhcy are exempt li-o1-n the overtime or mininiuni \v;lyc (or.
                                                               or
                                  holhi rc.q~lirclnc~its t h c i;l-SA. Cienrrall>. these cnil>loyc.csarc honn litlr
                                                   iv~*.                                                   1 he!: must he paitl on a
                                  c ~ s < ~ c t ~ tail~iiini>lra[i\t.. prc~li..;iiutl!fl e ~ n p l o ) c c ~ .
                                                                      or
                                                                                       the
                                  zal;ii.> ((11. See) ba.si.; and I I I L I .pcrli)1.111 cl~~tics
                                                                              ~~                   c1f:ln c.uc.~iipr  clnplo).:c. If an
                                                  is                                                                    s)
                                  ~ m l p l o ~ e ep;ritl trn ;I!I hourly I)usis I with \-er\. I;.\ ~ \ i ~ l ) l i o nhe is rio~ an
                                  I:sctiip~    crnploycc. bit[ is a Xonc~clnjilcmlilt~!.cc.See ".\re 'I'ou Iixeriip\" lbr
                                                               i
                                  Iilorc cic.t;~il oil l l ~ i zssue.

                                  Fair Idahor.S t:antlards .Act 

                                  IFc~l~.ral                                              i                  o~~.

                                            Inl7or 1;1\ - of pc.ncl.nl anel 11atio11\\-iclc~ p p l ~ c a l i ~r:sludin: O \ C I - I ~ I I I T .
                                  Lli~iiniirnib'ugc. F;(llliil l'a\ :\cL. :\Iso knoxn ;IS tlic T'T.S;\. or. rllc "(iarcia
                                  !\c~." I.t>c;~rccl 2c) L:SC'$$ZOL ct sc'il.
                                                    at

                                  Hours W c ~ r k c d
                                  I l . S i \ wages arc Jc'lcrlnincd by [lie l i ~ ~ ~ nolrliours all employee a c t ~ ~ a l l y
                                                                                        ber
                                  ivorks. All time actu;llly worked counts. hut only t i n ~ c      a~.luully\&orkcdcolrnrs.
OvertimeL.awycr.com - Glossary of Terrns Used in FLSA Lawsuits                                                                                    Page 2 of 5
                                                                                   T
                           "Iloi~rsiot \\o~-Ac.tl" re not u \ c r n c d I! he IFI.S:\. c i C n if the! arc,
                                    r                        a
                           ionsidereti "\\or.h ~ i ~ ! i c " "l,;~itl [inic." h the crrrplo! el.. Iliuc. "oll~tlrc
                                                                 or                    !                                                    clt~cb"
                           \\ark ~ O L I I I I > I.>III hoIi<iii! s. hick [la! >. o~irc.~, s o l ~ l ~ dI o; cot1111 l'l.S.\
                                                                                                            I O                      :I,
                           hours \\orkc(i. 0111i.r l~r:lus~          \vorkcJ I ~ I I I I;ar counteJ h! c.niplo!-ers ?l1ou1~1                  hc.
                                       a
                           paid. I-'ot. ninrc Jc[;~iIi.ddisc~rs\;ioil            ol'\\liat is a11d \\I131 i i ] l i l t " 1 1 i l ~ i l . i
                           h        ~c I ' ' I L           I          1I       i ,!l.l.<d?" pcigc.
                                                                                \

                           Independent C'i~nlr:~clor 

                           ,411i11depende111. O I ~ I I ~ ; I ~ L Li\qI . :I pc1.>011
                                                L                                        \vlii~se                                 ~ 1 1>I
                                                                                                 \\or!, ; r r r ; ~ ~ i g e r ~\)ic r ~ ~ 

                                                                                                                              \

                           cclnipany nicct ~ l i c   tielinition ol'i~irlepc.adent              culltractor under illc la\\.
                           (jcncnlll!. people who cull \\orLs li)r Irrv1.c than one coiill>a~i!ant1 \\ h c con~r.ol                       ~
                           tlicir \\orli in alliiost :ill respects \ \ i l l lie considc~.cJi~lJcl?c.ndent                    cclnll~;ic!cirs11'
                                                                                         ~~l
                              colnpan! cucl.cises tau riiucl~c o r i ~ r over hi)\\ a person pcrl\)rnis ~hcir,ioh
                           ! in~lucling  .ic~[ing  prices and lic.a\.il\ rcs~rictirig clirninati~~g or                     deci.,iii~l-
                           ~n:thii~! :~utlii)rit!.. t h a l I I I C p\.r.;cirl \ + i l l ~>rt,buhl!-be classilicd as nri
                           "ernpIu\-ee" \ \ h o \ \ o ~ ~ be e n ~ i ~ l ct it)l o \ erlime.
                                                                ld

                           Joint t.;mploynlrnt -- I h a l Enil)luy~nent
                           "loin1 e n ~ p l o y n ~ c nrefers to culplo!.ccs \vosking tllc i;iriic 11lhtiw I \ \ ( >
                                                          t"
                           "dill>rr.nt" rlnplo! Crs. . \ I [ hc>~~r:, gc11crn11) be ilg2rcg;~tcd.nriL! ~;IL,II io1111
                                                                             IIIIISI
                           cnlplil!-cr is ~iltiall)reip~l~isihlc \\.~gc'.u11lc.v tl~c.! 2 i - L . tru! "scjl;ir;i~c I:J
                                                                            1'01.                                                           J
                           inckpcndc.11t." "1)ual cn~plo!nrcr~t"r<tl.r.s to ernplo).cc\ ~\crt;i~.~ni~ig                           scpar.;ltc
                           ioh5 ii,l I I W S ~ ~ I I I C ~ l l l l er. !\I1 ~ I O ~ I II . > L Ig S ~ l e ~ ~ flc !: I ~ E I . Z ~ ; I I C L ~ !
                                                      ~~           i)!                     ~      e~          ll                     li)r-
                           purl?usc:s ( 1 ' ' IFI .S!\ o\ i:l-tlmc. \\age c~crmputariorlc

                           Liquitlntcd I)illnages ("dou1)lc d:iinagrs") 

                           Successti~l       pluin~ill's usirally cnri~lcclto r c c r j ~ c d o ~ ~ hthe 
alnoilrlt of'
                                                       arc                                  r             lc
                           irnpropcrl!. unpaid hack u q c s . I liis is callecl "licluidatc~tl           damagcs" and is
                           a\r urdeii in licu~of i~itercst. I'lain~il'l;.nr2 entitled to [hi-; extra pa! men[ unlcsb
                           tile ct?~plo!~rv sllc~\rthe\ l i ~ ~;It iSO~!LI FL1itl>L>cIid'~ l i i ~II C!.! \rere l'cdlt~\\
                                                can                                                                     1112
                                              that                      y           .<
                           tlrc. I:i\\ a1i~1 tile! hdil ~rca.;i>ri.:hl~s. ~ ~ u n d !ilr hclic\ in; !hc! t\cr-~,
                           c~ll?l;~l!  i11p.

                           hlcal i'criotls
                           I h e l.~I.S.,'i           require mciil periods. liouc\-cr. i f tlicrc are niral ~lcri(ltls
                                          tlocs ~ i o t
                           permitted. they count as comprnwtble hours \corkc.tl unle.;. ~hc. rr~~plo! [he         cc
                           is actually relieved ti-on1 acti\.c,job tluties. If an c ~ ~ i p l o aeti~all! gets a11
                                                                                                 ~cc
                                                                                               the         C rlot
                           u~lintr.rruptccimeal period. \.chile lice li.onl ncti\:c Ji~tics. ~ i ~ iIlI e C ~ hc
                           countctl 11s \>ol.k linle.

                           %oncscm[)t I~:~iiplo?ccs
                           \o~rcxc!llpt cmldo! ccs :ire ~cII'I.;III!                                           i
                                                                         clilitIc.~i ~ be 13ilicl o\csIi~?lclinlc- : I I I L ~ -
                                                                                   t )
                           a- half~it'rlicirrcgular sate 01' pa> for all I~uurs      ~lic!~\\ark (11 cr 40 i l l OIIC
                                                                                   t
                           \r-ork\veck). I'hc lau hasically uses t\\-o ~ c s t so tlctcr~ninc        il';irl crnplo!,cc is
                           nonexempt - ralar! .\NDdutic..\ (5c l u nlilst 111cetboth tests). Cienerall! . if! OII
                           pet paid h> the h(~us. u u arc n o r l c s ~ ~ ~ n p t . cr. c \ t . ~ iil' you gc.1 paitl a
                                                        k                      Hn\lc\
                           salary you I~I:I!- i ~ i l he entitled to o\ crrilnc hcc;r~lsc \ ~ , n O I I I C L I ~( I~I I saI:lr!
                                                      l                                    c       S
                           still 11a.i do cxcml>tduticb 01. clsd ~lic!- i1l.C erltitled to o\eninle. Scc. ".\re
                           '1'0tr k.\crrtpt" lo1 ~nol-c   dcr~lil ~ [his issue.
                                                                o i

                           "Off-the-('lock \\'ark" 

                           Also knoun ns "ofiduty" work. OIYthc clock work is work performed outi.ide 

                          the normal I I O L I ~ S (I!' the job. Solnc cxamples includc "honie\vork." tquiprnc.nt 

                          mai~rtcnar~cc,                                                r                ~.

                                            "staying late" (without "pulting in" l i ~ o v e r t i ~ n c ctc. Many
OvertimeLawyer.com - Glossary of 'ferms Used in FLSA Lawsuils                                                     Page 3 of 5
                          I:L,SA cascs in\.olvc employers not capturing mtl conipcnsaring ofl-[he-clock
                          work b! cinplojees. Saying su~ncthing "Oil4l1c-clocl," is a \\;I) ul'kccping
                                                                 is
                          the I~oursfrom being "houn workctl." For nlore inhr~nalion   about what Iiol~rs
                          should be countccl as hours worked (\vnrk timcj. scc [he "LVIIEILI\I.C I Ioi~rs
                          Worked" page

                          0n-C:~lI
                          Nothing in the FI.SA pl.oliibits an cmploycr iron1 requiring cmployccs to be
                          "or1 call." Off-premises on call or standby time is not rcqiriretl to tie counted as
                                                                                 ual
                          work tinlc except under rive. peciiliar and ~ ~ n i ~ scircun~stances.

                          13a?days
                                                                                   l l y ;I(
                          I4'I.S.A wages n~ust paid "uhcn ilue." \t-hich ~ ~ s ~ l~ncalis the nesi
                                              t)r
                          regularly scheduled payday. "Late pa!n1enlU of \vagcs is thc cqui\~alcnr  of'
                                           of
                          "nonpa)~ne~lt" wages t'cv most I'I.Si1 purposch. I'llc I:I .S.A docs no1
                          prexriibc hou li.eqtlentl\ \*ages must bc paid. "Pay periods" ma! bc. Jif'krriii
                                               or
                          fra1-n "\\-ork ~vecks" "work periods."

                          Regular Hatc
                          FLSA ovsrtirne is calculated at tirne and one-hall'ol'an e~nployer's       "regular
                               o
                          ~.atc" f' pay. Sulject to some speci;il rulcs. the regular rate is the topal non-
                                                                                                k)
                          ovel.ti~ne ompensation rtcei\ed by an cniplo!.er (iiir ~ ~ o rdivided 17) the
                                     c
                          number ol'nun-overlime hours lhcsc \+-agesare inrentled to curnpensuir. hfl~bst
                          waye "aug~ncnts"    Innst bc included in thc rcgi11:ir rutc. 5uch :I.; prod~rcti\-it!
                          bon~lst..;,lo~~gcvity or h i l i dit'li.~~c~~tials.
                                               pax,

                          ltetuliation and lliscrimi~~ation
                                                                                           t
                           ['he F'l.SJZ prohibits retaliation or cliscrirnination i l l ~lrccnns and conditions
                          ofcn~ploymen~     ayainsl employees for asserting rights undcr the F1.SA. The
                          anti-discrimination and anti-retaliation provisions h;i\c tccllr. and arc
                          inierprctcd lihcrall~in favor of cmplo)ccs.

                          Snlar?
                                                            basis if s!hc has a "giiar'intced ~nirlirriu~n"
                          .An e1111du>ec.> paid on a ai~liiry
                                        i
                          amount ol'money s/he can coimt un recei\:ing in the paychech Ibr an!: work
                          period during \vhicl~ sihc performs "any" work. The "sala~y      basis test" is one
                          way the FLSA distinguishes rsernpl fionl nuncxcmpt cmployccs. No matter
                          what an employee's job duties are. with only a ftw exceptions sihe is
                                                                                    1 the
                          nonexempt unless sihe is illso paid on a salary basis. 0 1 ollicr ]land.
                          111erel)paying all employee nn a salary basis mthcr thau hourly does not rnake
                          thc c~nployec cxcmpt unlzss s h c also perlbrms relatively high-lc\.cl ioh
                          Julies.

                          Snlar?; Uaris Test
                          An enlployec is pilid on a salary basis it's/he has a "guaranteed minimuni"
                          anlount ol'nloney dlie can count on receiving in the paycheck for any \vork
                          perioci during \vl~ichsihc parli,rn~s "any" work. I ~ h c  "salary I)nsis tcst" is one
                          way the FLSA distinguishes exempt kom ronexc~ilpt             emplo>res. X\:orlrat1c.s
                          \vl~at crnplo?ee!s job duties are. ~ritli
                                air                                  only a kw. csccplions s!hc is
                          nonc.xc~np~         sihc is also paid on a s a l w basis. 011 the other h:11iJ.
                                       u~rlca.;
                          nrcrcly paying a n eniplo! ee on a sitlar! b>isisr;itlicr tIit111 hol~rl! doc> no[ ~ni~lic
                          the employc.e escmpt unless <lie also pelT'ornis relniivrl!. high-le~;el
                                                                                                 job
                          duties.


http://ww.overtimelawyer.codglossary/index. htm
OvertimeI,awyer.com   - (ilossary of Terms I!sed in               I.'L,SA Lawsuits                                                                                Page 4 of 5
                             "7(K)" Erroiption 

                             Section 307(;ij (I!' the I-'l.SA requires cnlplo! ers [ ( I pa! their ci~~plo! 
                                               'cs
                             overrime cr>rnprl~s;~tiul~ Iiouh \\orlied over 40 h o ~ ~ rpcr \vccC. Section
                                                                    for all                                                                      :,
                             _707(k)pro\-ities a ptile~lri:~l             lirniled csen~ptionIrom ~ h ove:.~illlc                         c             pro\ i.sions of
                                                                                                                   arc
                             the t I . S . \ lilr- public agcnc.! cmplo!crs \vi~n cng;lgc~l "tire ~ i r ( ~ r ~ c r i ~ ) n                  11)
                             ,!CII\itics" 01. "I;I\I e r ~ ~ ~ ~ ~? <ct i \ci1ic5 " ~ ~ S >i ~rI I ~ "L, I>~ I. C I . I I L I L~ 71k J \\or.k
                                                                                      >                 ~ ~ 111 ~ r                                     I \
                                                                                                                                         \\c<~A< .
                             pericj~is''L,I~LII:;:L, 1 1 1 ~ .~ ; ~ t r ~ ~\ Li ~; \iLi, I I ~ l . ! \ . f ~ r t \ l.i i ! : ~ \ \ ~ \ I L .
                                                                                                                               ~         ''\\<11.k  !
                             pc:i(>~ii"(71' l-rorr~ C I I to l\\e11;\ .'ci$l~rd;t! , \\.i~li~>~.c?l~r!tc lii:. ~ I I . I L ! I . \
                                                      ,L,\                                                     .                                 o\\ Ld
                                         o
                             \vo~.ked \ e r .I ":lirc~liolcl"PC!- ntj1.k pe~,iod.\ I I I < I ~ arc Iarg~,r       \                                1iii111I?>I.{> 11o~lrs
                             per \vcek.

                             Stale [.,an
                                                                  \
                             Sonrc Slates mil! ! I : I \ ~\upcs ;inel Ilvurs 1;1\\ssinlilar 1 c 1 111' 1I.S;\. Slt~rc                            la\\
                             \\;~gc.s hours la\\> ;Ire i n acldition to 1-:.S:\ rccj~rircmcnt.;.; 1 t i ~ 1do I I ( ~ I
                                            and
                             FLI\TC:'~<LIC rhc 1.1,s\ I:r~:!ilc>!ccs t! 1iic;ril) nrc cnlillc~l t i ~ I I L I T ~ I I L - I ~ I \ t~i'lltc
                                                                                                                        t
                             i > t l ~ , r i ~ lI S.\or ~ I I ~ S I I ; I I \~I P L ~:t1tLl IIOI!I.> I L i \ \ > . i\t i i ~ - l C ~<II.C llcr[c~.
                                             1.                 I         \ :          ~                                             *
                                                                                                                                 ~I ~ \


                             Statute oTl.illritstic~ns
                             I lie norrlial FI S t \ S ~ ; I I L I ~ol'limitation.; enritlc.\ c ~ ~ ~ l ~ lro rcci>\cr. hacli
                                                                        '                                          o~ces
                             xvagrs beyir~nillg          t\vo years before a complain1 is filed and ~.stcnclir~g               l'orwnr,i
                                                                                                     i~ ~ I I C
                             ~ l r l t i l he ci~se ~ c s B I v I l ~ c t n t ~ ~oI'Iir~~itati~)~is ~ C !c:lr.-. i l ' 1I1c
                                         t          is                  ~ s .        tc
                             cniplnyel. " \ \ ~ i l l l i ~ l l ~or" "recl\iessl!" tiisregarded its Vl.54 o l ~ l i g a r i o ~ ~ns
                                                                  -                                                               A
                                                 I:I.Si\
                             c ~ n l ~ l o ~ ~ e r ' s rigli~s        hecom~,                                      i~
                                                                                "\,cstetl" only by 1 1 1 l~i l i ~ L)I';I c(lllipl;~i~~l
                                                                                                                                      it1
                             ctlLlrt.

                             Settlen~el~ls 

                                                                                                                                I
                             'TIIc I r l .SA pri>\,itic> i111tl (11iIyt\vo I ~ I ~ C I I : I I I ~ till- ~ I~ I ~I I I I ~ I ~ L,L.
! a~iti
                                                       r\\t>                                       ~II~
                             cmplo)-er to erl[er iltlc, a "liintli~ig" scl~lcmc~it     c~t'l-'I Si\ clai1115.             One i, 10 scttlc
                                                 r
                             :I matter ~ i n d e thc ".;~lpcr\.ision"                                        o1'I
                                                                     ol'the I.!.S. I)cpar.c~~ic.nr ahor I'lic 131ileri s
                              to ieule a rnarrt-1. in 11it course ol'litigation. A srt~lemznr                made \\it11 1')01.
                             s~~yer-vision. i n li~igatior~. be binding. and c>pcl.aicsas a \z;ri\cr ,>I'
                                              or                will
                             ;Jdi?ional claim5 by the cbmploycc.

                             S l r i t i ~ h .tI'ime
                             .l-lic 1- I.S.\ has lirnir~d .q>[~lic;~~ioli             l      \\;tgc\. ~ * \ c c ~ ) t l i i i r l i ~ l ~ ~ ~ l l i
                                                                         I ~ straiyli~ i ~ n c
                                                                             I                                   I'OI
                                                     I
                             \+age I:I\\ h . l'l~tIIJI! rinlc ~ i i c
                                                                    ll.S;\ reqr~ires  straiglit lirilC       ;I[ ;LII
                                                           is
                             emplo!.cc'> regular r , ~ k \\hen the clnplo!.re has \\orlied I-I.%..\ ib\c~.tirnc.

                             'I'raining Time
                             Training timc is gclie~.all!.compe~lsable
                                                                                        . .. . \\clrkin;! rinrc. \\it11 cuceprions.
                              Irainir~g       timc is 11o1\ v o r k i ~ ~ g r t !i I,; specificall! rcil~iirc~l thc Ian o f a
                                                                                  rinic                                    b!
                             " I ~ i g l i c r ~ j ~ : r i s ~ i i c I~ i:Ii icor~tlitiori
                                                                   > <        ~i"         t!l'?~~ipl@!~n~e~it.            t i I.
                                                                                                               r:~inir~g r ~ ~;e:II>o 1101
                                                                                                                     \\ L
                             \\ (7rLiilg tinic i t ' i t I \ i a I til~thi~ie tlic ~ ' I I I ~ I o ! cc's I.c;:LI~,I~~ I L I I I ~
                                                                                     oi                                         110~11.s:  a11e1.
                                                 \                    a~icl.                                                      ~c~ I >
                             (,I31 stri~.~l!O ~ I I I I K I I - > :1cj 1101 t l i r ~ ~ c , t lrcl;~tcL111 tl1c c ~ i i \ ~ l o \ lttll: ;~ I' I ~
                                                                                                   ?
                                                              !~C
                             (<I 1 ttle L ~ I ~ I ~ ) I ~ ~ IIIJLISI~iotpcrti)r111 ( o t l ~ cp ~t d ~ ~ c ; i \\oi-l, Juriii? 111~.
                                                                                          ;11i!         rr             \c
                                 . .
                             11'3111111~.


                             \\ aivc.1-
                             TLS:\ rights nu! IIOI hc \vai\,ctl. h!. cr)lleeli\c h:irg:~iningagreclncllth.
                             c~~:ploynlenl clmll.acls. or otlicr\r ise. (ienzmily. an cnlplo! L.C i h cnrirl~d ~ I   I
                             1LS.A rigllrs u)r colicc~i\~cixirgaini~lg   righls. \r.hichc\.cr.;ire I.rcrlcl.. "1 ;~ilul.e
                                                                                                                        ro
                             nsk" for FLS.:\ cnmpclisnrion is nlmot alwa!.s imlevnnr. Fnillirr                                                  use
                                             1            is irrcle\?ant.Il'ork. M(I.;~
                             3tlu1inis~l-ativc ~1.o~ed11res                           "jol>-l.clutctl"acli\ ilics :Ire
                             consirlcrcd work 111it1c.rt l I.'I.SA. anti ~i~irsr conil~c~~sa!cil
                                                             ~                bc                ;~ccorclirrgly.
.                   -
OvertirneLa\cyer.co~ii Glossary of ?'emis Used in I;l.S;Z I~awsuits   Page 5 of 5

				
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