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If You Received FlexCash and Overtime Pay During the Last Three Years, You May Be Entitled to a Little Bit More!

11/23/2018

Under the federal Fair Labor Standards Act (FLSA), any hours worked by a non-exempt employee in excess of forty (40) hours during any workweek must be compensated at one and a half (1 1/2) times the employee’s “regular rate of pay.”  In Flores v. City of San Gabriel, 824 F.3d 890 (9th Cir. 2016), the U.S. Court of Appeals for the Ninth Circuit held that  “cash-in-lieu of benefits payments are not properly excluded from [i.e., must be included in] the calculation of the regular rate of pay” for overtime compensation purposes.  Id. at 907.  

Payments under our FlexCash Program (see Article 24.18 of our Collective Bargaining Agreement (CBA)) are an example of such “cash-in-lieu of benefits payments.”  To comply with Flores, the CSU recently informed APC:

“In accordance with FLSA, any monies paid in lieu of health and/or dental benefits under the FlexCash Program will be factored in when determining a non-exempt employee´s regular rate of pay for the purposes of computing overtime. This will result in a small increase to the overtime rate of non-exempt employees who participate in the FlexCash program.”

Although the CSU did not say so, this is also true retroactively.  Thus, if you received FlexCash and overtime pay within the last three (3) years, you may be entitled to a little bit more.  In order to be eligible for back pay, you must meet all of the following three conditions:

1. You were a non-exempt employee (see Appendix D to our CBA for a list of non-exempt Unit 4 classifications); and

2. You received FlexCash; and

3. You worked overtime and were compensated for it in cash.

Please note that our CBA provides that “[a]ll overtime hours worked shall be compensated by cash or compensatory time off (CTO) as determined by the appropriate administrator.”  Article 28.19.  If you were initially compensated by CTO, you are not entitled to back pay unless you later had “a CTO balance in excess of one hundred twenty (120) hours as of December 31” of any year and were therefore “paid in cash for all hours in excess of one hundred twenty (120)” by February 1 of the next year.  Id.

Please also note that any back pay to which you may be entitled will likely be very small.  But these days, every penny counts.  If you believe you maybe entitled to back pay under Flores, please contact APC Senior Labor Relations Representative Bernhard Rohrbacher at brohrbacher@apc1002.org.