Department of Labor Overtime Regulations

lynn esp

Illinois has passed an amendment to the Illinois Minimum Wage Act to state the exemptions provided under the FLSA apply as they existed on 3/30/03. It is my understanding a state may opt out of the FLSA, does this mean none of the new rules apply? Any replies at [email]lynn.esp@ilcusys.org[/email] would be great. Thanks. Lynn Esp

santire

A state cannot opt out of FLSA. The state is subject to FLSA both by terms of the statute as well as under the supremacy clause of the U.S. Constitution. The relationship between a state statute and a Federal statute on the same subjects is referred to as preemption. For some Federal laws, such as ERISA, Federal law completely preempt the State law meaning that Federal law controls on all points to maintain uniformity throughout the United States and the state cannot set a different standard. However, preemption for such areas such as Title VII of the Civil Rights Act and the FLSA is a little different. Effectively, a state can have its own discrimination laws and wage and hour laws which are valid to the extent that they provide individuals with more protection than per Federal law. This is why California can have a law that requires overtime after 8 hours rather than the 40 hour FLSA standard. What this all means for the Illinois decision is that employers will have to look to both laws (yes a bit confusing). For example, if the FLSA provides that a position is exempt and does not involve overtime and Illinois says it is nonexempt and involves overtime, the employer will be obligated to pay overtime. You might think of the FLSA as a floor rather than a ceiling. It sets a minimum for what must be paid while allowing a state to require more. One of the more complex aspects of the relationship between the FLSA and the Illinois decision will be that for each job an employer will need to satisfy both the FLSA (the new rules) and the Illinois requirements (which consist of the old FLSA rules.) What sets Illinois apart from California is that California has an extensive state wage and hours statute. Illinois is merely adopting the old FLSA rules. Note that in what Illinois is doing, the $455 figure of the new FLSA regulations will apply since it requires that employees be paid more than under the old FLSA short test of $250. This is the preemption concept at work.
Stanley P. Santire, J.D.