           THE      ATTORSEY             GESERAL
                        OF   TEXAS

                         April 17, 1987




Mr. Ron Jacksou                   Opinion No. JR-680
Executive Director
Texas Youth Commission            Re: Applicability of the 1985 federal
P. 0. Box 9999                    fair labor standards amendments to
Austin, Texas 78766               certain employees of the Texas Youth
                                  commission

Dear Mr. Jackson:

     You ask several questions about the interplay of state and
federal laws relating to overtime compensation for certain employees
of the Texas Youth Commission. Your questions are as follows:

             1. Does article V. section Zf(l), of the
          current General Appropriations Act prohibit state
          agencies from utilizing the more liberal compensa-
          tory time provisions of the 1985 Fair Labor Stan-
          dards Amendments (P.L. 99-150), section 21

             2.  Even if your response to the first question
          is affirmative, does the final paragraph of section
          Zf(l) authorize the Texas Youth Cosuaission, as a
          correctional institution, to calculate overtime and
          to compensate for overtime for its employees who
          are engaged in direct supervision of childr'enwho
          have been adjudicated delinquent, in any manner
          consistent with the PLSA?

            3. Does article 5165a. V.T.C.S.. establish that
         the standard workweek may be more than 40 hours a
         week for child care workers (whether called house-
         parents. youth activity supervisors or caseworkers)
         who are employed by and whose lodging is provided
         by the Texas Youth Commission during their tour of
         duty?

             4. If your answer to the previous question is
          affirmative, may the regular hourly rate of such a
          TYC employee be calculated, and may overtime com-
          pensation be paid, by the method authorized by




                               p. 3127
Mr. Ron Jackson - Page 2 (JM-680)




          29 U.S.C. 5207(g)(3) end described in 29 C.F.R.
          5778.114(a)?

             5.a. If your answer to the third question is
          affirmative, may    the Texas Youth Commission
          properly calculate the hourly rate of pay for en
          hourly employee, who is employed es a child care
          worker end whose lodging is provided by TYC during
          his tour of duty, et a rate other than that set out
          in Attorney General Opinion E-465 (1974)T

             5.b. Specifically. if the normal number of
          hours of employment per week for such en employee
          is 64. may the hourly rate be set by.dividing 1152
          of the yearly rate by 64?

     Your concerns stem from the fact that certain employees of the
commission. such es houseparents, ere routinely "on duty" more then 40
hours a week because they live et commission facilities duriug their
work assignments. Section 7(a)(l) of the Fair Labor Standards Act of
1938, 29 U.S.C. 55201 et seq., (hereinafter FLSA). forbids employers
from requiring or allowing employees to work more then 40 hours per
week without compensating the employees for the overtime et 1 112
times the employee's regular rate of pay. The FLSA applies to public
employers. See Garcia v. San Antonio Metropolitan Transit Authoricy,
469 U.S. 5287985);    see also Attorney General Opinion JM-475 (1986)
(for history of controversy). Prior to amendment in 1985, the FLSA
required covered employers to actually pay employees et 1 l/2 clmes
their regular rate of pay for overtime unless they were allowed to
take time off et 1 l/2 times their accrued overtime hours during the
seme pay period in which the overtime accrued. Congress emended the
PLSA in 1985 to allow public employers to provide this compensatory
time off under more liberal terms.         S&e Pair Labor Standards
Amendments of 1985, Pub. L. 99-150. $2(a)(1) (1985) (amending 29
U.S.C. 5207).

      Attorney General Opinion Nos. JM-491 end m-475 (1986) resolve
your first and second qriestions. Your first question la whether
article V, section 2f(l), of the current General Appropriations Act,
Acts 1985, 69th Leg., ch. 980. et budget 476, prohibits state agencies
from using the more liberal compensatory time provisions of the 1985
Fair Labor Standards Amendments. See Pub. L. 99-150. 02(a)(l). In
Attorney   General Opinion Nos. JM-475=d JM-491. this office indicated
chat the Texas Legislature, by enacting sections 2f(l) end (4) of the
eppropriations act. evidenced the intent to authorize state agencies
to take advantage of exceptions to the FLSA granted by Congress.
Thus, section 2f(l) does not prohibir the use of these exceptions.
State   agencies may take advantage of FLSA exceptions so long es the




                                p. 3128
Mr. Ron Jackson - Page 3   (~~-680)




agencies do so in the manner prescribed under the FLSA.   See 29 U.S.C.
                                                          -
0207.

     One of the FLSA exceptions covers law enforcement employees. See
29 U.S.C. 11207(0)(3)(A). 207(p)(l); see also 1207(k); 29 C.Fx
1553.1 et szq. Your second questloon is whether the Texas Youth
Commission. es 8 correctional 1nst1tuti0n." may calculate overtime
pursuant to the final paragraph of section 2f(l) of the Appropriations
Act "in any menner consistent with the FLSA."    Although your second
question is premised upon en affirmetive response to your first
questlou, the scope of your second question is not clear.
Accordingly, it is necessary to address the aspect of your question
which relates to the FLSA law enforcement exception. The final
paragraph of section 2f(l) provides:

             Exceptions to the workweek overtime calculation
          for hospital. fire protection, and law enforcement
          activities (including security personnel in the
          correctional institutions) shall be made in accor-
          deuce with the FLSA.  (Emphasis added).

Because this paragraph requires compliance with the FLSA. it is not
clear whet you mean by asking whether the commission may calculate
overtime pursuant to this paragraph without violating the FLSA. We
understand you to ask whether the first pert of section 2f(l) negates
this paragraph. It does not. Whether the Texas Youth Commission may
take advantage of en exception for law enforcement activities depends
upon the scope of the term es used in the FLSA.

     For purposes of the FLSA the term "law enforcement employees"
includes security personnel in correctional institutions. See 29
U.S.C. 55207(k). 207(p)(l). Federal regulations. however. define a
law enforcement employee under the FLSA es

         any employee (1) who is a uniformed or plain-
         clothed member of a body of officers end sub-
         ordinates who are empowered by statute or local
         ordinance to enforce laws designed to maintain
         public peace end order end to protect both life
         end property from accidental or willful injury.
         end to prevent end detect crimes, (2) who has the
         power of errest. end (3) who is presently under-
         going or has undergone or will undergo on-the-job
         training end/or a course of instruction end study
         which   cyp1ca11y includes physical     training,
         self-defense, firearm proficiency, criminal end
         civil law principles, investigative end law
         enforcement   techniques,   community  relations,
         medicel aid end ethics.




                                 p. 3129
Mr. Ron Jackson 1 Page 4   (m-680)




29 C.F.R. 5553.4.

     Although Texas Youth Commission child care workers may perform
hazardous work In the supervision of the troubled young people in
their care, they do not es a class fell within the federal definition
of law enforcement employees. Section 61.002 of the Texas Humen
Resources Code provides:

             The purposs of this chapter is co provide
          for administration of the scete's correctional
          facilities for delinquent children, to provide a
          nrosram of constructive traininn aimed et rehebi-
          ii&ion   end reestablishment in-society of child-
          ren adjudged delinquent by the courts of this
          state end committed to the Texas Youth Cosuaission,
          end to provide active parole supervision for
          deliaquent children until officially discharged
          from custody of    the Texas Youth Commission.
          (Emphasis added).

Many Youth Commission facilities may be correctly characterized es
"correctional institutions." Not all of the people employed et these
facilities. however. are employed ~cifically    es security personnel.
To fit within the FLSA’s law enforcement exception, en employee must
fit the narrow definition set forth in section 553.4 of the federal
regulations quoted above. Whether particular employees meet this
definition is a fact question. The article 4399, V.T.C.S., opinion
process wee not intended to resolve factual disputes.

     Your third question is whether article 5165a. V.T.C.S.. which
governs the veekly working hours of state office employees, authorizes
a standard workweek of more then 40 hours for comission child care
workers . Section 2 of article 5165a,provides:

             Except es provided by Section 2A of this Act,
          each state employee paid on a full-time salary
          basis. shell work forty (40) hours a week. Pro-
          vided. however, that the edministratlve heedsof
          agencies whose functions are such that certain
          services must be maintained on a twenty-four (24)
          hours per day basis are authorized to require that
          essential employees engaged in performing such
          services be on duty for e longer work-week in
          necessery or emergency situations.        Provided
          further that the provisions of this Act do not
          apply to houseparents who are employed by end who
          live at the facilitirs of chr Texas Youth Coauais-
          sion. (Emphasis added).




                                 p. 3130
Mr. Ron Jackson - Page 5   (JM-680)




The dispositive issue is whether the lest sentence of section 2
applies only to the sentence which precedes it or to the requirement
that state employees work a 40 hour week.

      The lest sentence of section 2 of article 5165a must be construed
to except from article 5165a houseparents who ere employed by end who
live et facilities supervised by the Texas Youth Commission. The
exception refers to the provisions of this act. not to the preceding
exception from the act. The syntax of the sentence also suggests that
it applies to the 40 hour workweek requirement. Section 2 begins with
the requirement that salaried stete employees work a 40 hour week.
The sentence following this requirement states "[plrovided. however,"
that an exception is authorized "in necessary or emergency sicua-
tions." The exception for youth commission houseparents begins with
the phrase "[p]rovided further." This language indicates that both
exceptions refer beck to the basic 40 hour workweek requirement.
Moreover,   the bill caption under which this exception was first
enacted provides for "the exemption of live-in houseparents employed
by the Texas Youth Council from the state employees work-week law."
Acts 1977, 65th Leg.. ch. 148, et 315. Your specific question is
whether article 5165a establishes that the standard workweek for the
commission's child care workers may exceed 40 hours. Article 5165a's
40 hour workweek requirements do not apply to the commission's child
care workers. This does not mean that article 5165a affirmatively
authorizes e workweek in excess of 40 hours.

     As indicated previously, the commission mnst comply with the
FISA. Section 207(a)(l) of Title 29 forbids employers, including
public employers, from requiring or allowing employees to work more
then 40 hours per week without compensating the employees for the
overtime et 1 l/2 times the employee's regular rate of pay. The act
does not fix a 40 hour maximum workweek. -
                                         See 29 C.F.R. 5778.102.

     Your fourth, fifth end sixth questions all relate to the compu-
tetion of a regular rate of pay from which overtime      is determined
under the FLSA. In the general computation of overtime compensation
under the FLSA, a "regular rate" must be determined. This rate is en
hourly rate. See 29 C.F.R. 5778.109. When en employee works on a
salary basis endche    salary covers   e period longer then one work-
week, the salary must be reduced to its workweek equivalent. The
appropriations act indicates that annual salaries for state employees
are to be paid in 12 equal monthly installments. See Acts 1985, 69th
Leg., ch. 980, art. V. $2(a). et budget 475. Under the federal
regulations, a monthly salary translates to its equivalent weekly wage
by multiplying the salary by 12. the number of months, end dividing
the product by 52, the number of weeks. See 29 C.F.R. 0778.113(b).
The regular rate   of pay for salaried emxoyees is determined by
dividing the weekly wage by the number of hours per week which the
salary is intended to compensate. - See 29 C.F.R. $778.113(a).




                                p. 3131
Mr. Ron Jackson - Page 6   (JM-680)




     Your fourth question is whether the regular rate for the
computation of overtime comp6nsation may be determined by the method
euthorized in section 207(g)(3) of the FLSA es described in section
778.114(a) of Title 29 of the Code of Federal Regulations. Section
778.114 provides e method for determining the regular rate necessary
to complete the overtime required by section 207(a) when the employee
receives a fixed salary for fluctuating weekly hours. Regulations
issued pursuant to section 207(g)(3) are published et section 548.1,
et seq., of Title 29 of the Code of Federal Regulations. Section
778.114 addresses problems arising when en employee receives a fixed
salary but works hours which fluctuate from week to week. Your fourth
question must be considered in the context of your fifth quesrion.
You ask whether the hourly rate for en employee may be set by dividing
1152 of the yearly rate by 64 when the normal number of hours of
employment per week is 64.       The method of computing overtime
authorized by section 778.114 wes not intended to apply to situations
where en employee routinely works a massive number of hours; section
710.114 applies Co employees whose hours fluctuate from week to week.
See Yadev v. Coleman Oldsmobile, 538 F.2d 1206 (5th Cir. 1976); see
also Welling v. A.H. Belo Corp., 316 U.S. 624 (1942); Donovan v. Br%
Equipment end Service Tools, Inc., 666 F.2d 148. 152-53 (5th Cir.
1982). Consequently, if a Texas Youth Commission employee's standard
workweek is 64 hours, the method of computing overtime authorized in
section 778.114 cannot apply.

     Your fifth question is whether the regular rate of pay may be
computed by- a method other then thst specified in Attorney General
Opinion H-465 (1974). Attorney General Opinion H-465 (1974) stated:

          It is well established that the proper method for
          the computation of hourly wages from monthly
          salaries for overtime purposes is to multiply the
          monthly  salary by twelve to obtain the yearly
          rate. divide the yearly rate by 52 to obtain the
          weekly rate. end divide the weekly rate by the
          number of contracted hours of emnlovment net week.
          usually forty, to obtain the hourly rate. B&
          Ridge Operating Co., Inc. v. Aaron, 334 U.S. 446,
          464 (1948); Triple "AAA" Company, Inc. v. Wirtz.
          378 P.2d 884 (10th Cir. 1967), cert. denied, 389
          U.S. 959 (1967); Patsy Oil 6 Gas Co. v. Roberts,
          132 F.2d 826 (10th Cir. 1943); Seneca Coal 6 Coke
          Co. v. Loftin, 136 F.2d 359 (10th Cir. 1943).
          cert. denied, 320 U.S. 772 (1943); 29 C.F.R.
          1778.113 (1973). (Emphasis added).

Although a greet deal of controversy has intervened since this opinion
was decided, See Attorney General Opinion JM-475 (1986) (for history
of epplicebili~ of 'the FLSA to public employere). it is once again




                              p. 3132
Mr. Ron Jackson - Page 7   (JM-680)




instructive.   Under the federal regulations, e monthly salary
translates to its equivalent weekly wage by multiplying the salary by
12 end dividiug the product by 52. See 29 C.F.R. 1778.113(b). The
regular rate of pay for a salaried q-yee     is determined by dividing
the weekly wage by the number of hours per week which the salary IS
intended to compensate. -
                        See 29 C.F.R. 5778.113(a).

     As indiceted in Attorney General Opinion H-465, the usual number
of hours of employment per week is forty. This is understood with
regard to most state employees because article 5165~~ mandates a 40
hour workweek. See also General Appropriations Act, Acts 1985, 69th
Leg., ch. 980, ert. V, 52(a), et budget 475 (keyed to employees
covered by article 5165a). Article 5165a does not. however, apply to
houseparents employed by end living et facilities supervised by the
Texas Youth Commission.

     You ask, in specific, whether the regular hourly rate for
computing overtime may be determined by dividing l/52 of the yearly
salary by 64 when the normal number of hours of employment per week is
64. Consequently, whet you are asking is not whether you may use a
method other then that specified in Attorney General Opinion H-465,
but whether you may use the method in Attorney General Opinion E-465
with a usual workweek which exceeds 40 hours. Obviously, the effect
of applying this method would be significant. For example, if en
employee teceived e yearly salary of $20,000, or approximately $385
per week. with the understanding end agreement that it     constitutes
compensation for a 40 hour workweek, the employee's regular rate of
pay is approximately $9.63 per hour. If the employee worked 64 hours,
the employee would be entitled to $9.63 for each of the first 40 hours
($385). end 1 l/2 times $9.63 for the 24 hours of overtime ($347).
The employee would receive e total of $732 for the week. On the other
hand, if the employee understands end agrees that the salary is
intended to compensate a regular workweek of 64 hours, the regular
rete of pay would be $6.02 per hour. The employee would receive only
$6.02 for each of the first 40 hours ($241). end 1 l/2 times $6.02 for
the 24 hours of overtime ($217). The employee would receive a total
of $458 for the week. Thus, the employer still has to pay 1 l/2 times
overtime for the hours actually worked in excess of 40, but et a
greatly reduced regular rate of pay.

     Whether the Texas Youth Commission may use a 64 hour workweek to
compute en employee's regular rate of pay for determining overtime
compensation under the FLSA depends on ,the existence of en under-
standing between the employee end employer that the employee's salary
is intended to compensate the employee for a standard 64 hour work-
week. See 29 C.F.R. $778.113(a). Regular rates for the purpose of
computin~vertime have been determined under the FLSA on the basis of
a standard workweek which exceeds 40 hours. Overnight Motor Trans-
portation Company, Inc. v. Missel. 316 U.S. 572, 580 (1942); Marshall




                               p. 3133
Mr. Ron Jackson - Page 8   (JM-680)




v. R & M Erectors, Inc., 429 F. Supp. 771, 778 (D. Delaware 1977).   As
the United States Supreme Court stated in the Overnight decision:

         It is true that the longer the hours, the less the
          rate end the pay per hour.      This is not en
         argument, however,     against  this method     of
         determining the regular rate of employment for the
         week in question. . . . It is this quotient which
         is the 'regular rate et which en employee is
         employed' under contrects of the types described
         end applied in this paragraph for fixed weekly
         compensation for hours, certain or variable.

316 U.S. et 580.

     Nevertheless, there must be a clear understanding. arrived et
before the performance of work, that the fixed salary is intended es
compensation. exclusive of overtime, for a standard 64 hour workweek.
See id.; see also 29 C.F.R. 5778.113(a). In the example set forth
--
above. the employee must understand the concept that his salary
translates to a base pay of $6.02 per hour rather then $9.63 per hour
before he performs the work in question. This does not mean that the
employee must or may agree to vork overtime et a non-overtime rate.
An agreement for en employee to work over 40 hours a week et a
non-overtime rate or to work et less then the minimum wage would not
be enforceable because en employee's right to a minimum wage per hour
and overtime pay for hours worked over 40 in e week is not subject to
weiver by the smployee. Allen v. Atlantic Richfield Co., 724 F.2d
1131.' 1135 (5th Cir. 1984); see also 29 C.F.R. $778.107. In other
words, en employee may agree to work for $6.02 per hour and may agree
to work a 64 hour workweek. The employee cannot, however, agree to
receive only $6.02 for the 24 hours of overtime;    the employee must
receive 1 l/2 times $6.03 for each hour of overtime worked. Whether
en agreement exists that 64 hours constitutes en employee's standard
workweek for the computation of a regular rate of pay under the FLSA
depends upon factual determinations for which the article 4399,
V.T.C.S.. opinion process was not intended. Both the fact that Texas
Youth Commission houseparents are expressly excluded from article
5165a's 40 hour workweek requirement end the fact that there may
nevertheless exist a general understanding that yearly state salaries
are fixed in terms of a 40 hour workweek must be considered.

     You should also note that there are instances in which time spent
on en employer's premises is not deemed to be compensable working time
under the FLSA. See Barrentine v. Arkansas - Best Freight System,
Inc., 450 U.S. 7287981);    Allen v. Atlantic Richfield Co., 724 F.2d
1131 (5th Cir. 1984). The agreement of the parties is relevant to
whet constitutes compensable time under the FLSA.   Allen  v. Atlantic
Richfield Co., 724 F.2d et 1136.      Like the determination of whet




                               p. 3134
Mr. Ron Jackson - Page 9   (JM-680)




constitutes a regular rate under the FLSA, the determination of whet
constitutes compensable working time under the FLSA involves complex
mixed questions of fact and law. Barrentine v. Arkansas - Best
Freight System, Inc.. 450 U.S. et 743. These questions cannot be
resolved in the opinion process.

                              SUMMARY

             Section 2f(l) of the current General Approprie-
          tions Act does not prohibit state agencies from
          using   the   more   liberal   compensatory   time
          provisions of the Fair Labor Standards Amendments
          of 1985. The Texas Youth commission may not,
          however, apply the exceptions to the Fair Labor
          Standards Act of 1938, (FLSA) es amended, for law
          enforcement activities to en employee unless the
          employee fits the narrow definition of a law
          enforcement employee set forth in section 553.4 of
          Title 29 of the Code of Federal Regulations.

             Article 5165, V.T.C.S.. does not apply to
          houseparents who are employed by end who live et
          facilities   supervised by    the   Texas  Youth
          Cmmission.

             Regular hourly rates for the computation of
          overtime under the FLSA may be determined on the
          basis of a standard workweek of 64 hours only if
          en understanding exists that the employee's salary
          is intended to compensate the employee for 64
          hours, exclusive of overtime.

             Section 778.114 of Title 29 of the Code of
          Federal Regulations address&     problems arising
          when en employee receives a fixed salary but works
          hours which fluctuate from week to week. If a
          commission employee's standard workweek is 64
          hours,   the   method   of    computing   overtime
          compensation authorized in section 778.114 cannot
          apply.

                                      ,   Very/ttr


                                                                      _
                                          JIM     MATTOX
                                          Attorney General of Texas




                                p. 3135
Mr. Ron Jackson - Page 10     (JM-680)




JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JIlTIGE
      ZOLLIE STRAKLRY
Special Assistent Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




                               p. 3136
