Question:

If assistant DAs are "salaried exempt" employees, and we are, can we be required to fill out weekly time cards??

How do other counties handle this?

If you're asking whether the FLSA requires the completion of time cards for assistants, given their exemption, then the answer is no. On the other hand, there are other nuances to your question. Can we be "required" by our bosses, the electeds, to complete paperwork that is not legally mandated, but is not illegal? If we don't, we probably can dust off our resumes and hone our interviewing skills. But can the commissioners court require such permissible, yet non-mandatory, recordkeeping?

Although AG opinions chart a somewhat erratic course, recognizing the county's ability to audit and require accurate financial records, yet holding to the prohibition against the commissioners court making personnel decisions (aside from creating or eliminating budgeted positions) for elected officials, there is minimal justification for the county requiring time records from an exempt employee. After all, qualifying for the professional exemption requires that the employee be compensated on a salary basis. In turn, salary basis means the employee must receive his/her weekly salary compensation for any week in which he/she performs work, without deduction for the quality or quantity of work. Unless a disciplinary deduction, or a deduction based on exhaustion of sick leave, is imposed, that means the employee gets paid whether he/she works some or all of the week. Keeping records on the days worked vs. those not worked ultimately could be used against the county to help demonstrate a pattern of arranging for improper deductions from salaried employees' pay. So, they probably can't and, even if they can, it's a bad idea. With that said, I will also concede that the AG often finds a way to pointedly and tersely tell me that I'm wrong.

I did not give enough details. My boss does not require the time cards. The county treasurer does! We've been told that we would not receive paychecks if weekly time cards are not turned in.

The problem has arisen again now that the CCL judge wants a full-time court reporter. Of course, she would not be working in the courthouse 40 hours per week. The CCL judge believes her new employee would be salaried exempt and should not have to turn in a time card. She was appalled to learn that the asst DAs do!

Unfortunately, as I alluded to above, the AG has not been entirely consistent on this issue.

To be sure, the AG has not declared that a treasurer has authority to require any accountability recordkeeping. I'm guessing your treasurer is riding Op. Tex. Att'y Gen. No. JM-1099 (1989), which concludes that the auditor may require submission of "basic payroll information," including hours worked. JM-1099, however, expressly disclaims any discussion of the implications of the FLSA, so it does not expressly address exempt employees. On the other hand, Op. Tex. Att'y Gen. No. JM-1186 (1990) opines that the auditor lacks authority to determine whether an officer or employee is discharging the duties of his office. Likewise, Op. Tex. Att'y Gen. No. JM-182 (1984) concludes that the commissioners court has no constitutional or statutory authority to reduce the pay of county officials who do not observe specified office hours; nor are commissioners authorized to usurp the duties and performance of independent county officials and employees.

Thus, I think the same answer applies, assuming the employee in question truly is exempt (which may not be a given for your court reporter). The treasurer simply writes checks; he/she has no authority to dicate any such accountability policy. Even if the treasurer is acting as the HR director, there is no need (or express authority under the Local Government Code) to require time sheets for exempt employees. Unless the policy you describe is a collaboration between the treasurer and the auditor, it sounds suspiciously like a usurpation of the auditor's function, at best.

It may be appropriate to keep track of leave time (per 29 C.F.R. sec. 541.709), but that doesn't perforce translate into time sheets for exempt employees. Whether the practice is permissible under state law, then, I continue to think that it's questionable from an FLSA standpoint. It simply creates the paperwork trail for a disgruntled "exempt" employee to show that the county never really contemplated him/her as exempt (if they were truly exempt, why would time cards be necessary?). Moreover, it smacks of being an attempt to gain a measure of control over how an elected official deploys his/her staff -- something the commissioners court and other county officials lack authority to do. I know of no other authority giving another county official that kind of control over coordinate elected officials. What it does accomplish is animosity between elected officials. In the end, your treasurer might be well advised to consider keeping only leave time and disciplinary suspension records for exempt employees. And that could be done solely by the elected. But I stand open to debate.

[This message was edited by Scott Brumley on 08-29-04 at .]

[This message was edited by Scott Brumley on 08-29-04 at .]

[This message was edited by Scott Brumley on 08-29-04 at .]

Here's their website:

http://www.dol.gov/esa/regs/compliance/whd/fairpay/main.htm

Check out the FAQ's.

Of course, the trickier issue is not whether an ADA can be required to keep timesheets, but WHO can require that. The feds stay out of the niceties of one elected or appointed officer usurping another's authority.

Ms. Diamond not only has a good point, but unless you can argue 11th amendment immunity (and most county officials have little or none of that), be they their employees or another elected's employees, the feds have no problem usurping all county authority as to who is exempt and who is not!!!!!

There appear to be at least two distinct issues that have emerged from this discussion (both of which are important and valid). First, can a treasurer require exempt county employees to fill out weekly time cards? Since part 516 of the FLSA regs provides that time records for professional employees need not be kept, the answer is one that must come from state law. Although Texas law, as interpreted by the AG, is somewhat uncertain on the issue, at least one of my opinions (are you paying attention, Lee? ) is that the treasurer can tell her own employees to complete time cards, but she has no independent authority to order exempt employees of other elected officials to do so (nor can she lawfully withhold paychecks for failure to submit the time cards).

I agree with Ann and Lee that the thornier issue is the question of who has the authority to ensure county compliance with the FLSA's requirements (particularly those concerning proper classification of exempt vs. non-exempt employees and associated recordkeeping). The only suggestion I have seen is the inference in JM-1099 that the auditor has some authority to do so within the scope of overseeing county finances and ensuring that county expenditures comport with the law. Thus, on the one hand, we have county officials who don't want the treasurer telling them how to run their office. On the other, we have those of us who are responsible for defending FLSA lawsuits who need to see that the county's exemption determinations and records are in order. County government is an ungainly creature, isn't it?