Request By:
Mr. Ralph Morris
Mercer County Court Clerk
Harrodsburg, Kentucky 40330
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your questions relate to office hours or days for county public offices:
Question 1:
"Who has the power to determine whether an office will be open on Saturdays, a county judge/executive, the fiscal court or the official who holds the office?"
The official who holds the office determines what his closing period or periods will be. KRS 61.160 permits county public offices to close any one (1) full day of any week, or any two (2) half days Monday through Saturday of any week. There is nothing, however, prohibiting the local public office holders from getting together and agreeing on a uniform policy of closing time under the statute.
Question 2:
"Could a county official in any way be held liable for working employees over a forty hour week where said employees are paid a monthly salary? "
KRS 337.285 provides that no employer shall employ any of his employes for a workweek longer than forty (40) hours, unless such employe received compensation for his employment in excess of forty (40) hours in a workweek at a rate of not less than one and one half (1 1/2) times the hourly wage rate at which he is employed. Assuming a covered employe situation [see KRS 337.010(2)(c)], if the county official permits the employe to work in excess of the 40 hour workweek, the county official, if he is a constitutional officer, must pay the overtime rate, since the statute simply requires the "employer" to pay the overtime rate of pay in the applicable situation. The money for overtime would come out of the fees of his office or county treasury, as the case may be. If the employe is technically a "county employe" under the direct "hire and fire" authority of fiscal court, then the employer who pays any employe less than the overtime compensation to which he is entitled, under KRS 337.285 [time and half], shall be liable to such employee affected for the full amount of such overtime compensation, less any amount actually paid to the employe by the employer, for an additional equal amount as liquidated damages, and for costs and such reasonable attorney's fees as may be allowed by the court. Provided, that if, in any action commenced to recover such overtime compensation or liquidated damages, the employer shows to the satisfaction of the court that the act or omission giving raise to such action was in good faith and that he had reasonable grounds for believing that his act or omission was not a violation of KRS 337.285, the court may, in its sound discretion, award no liquidated damages. KRS 337.385.
Under KRS 337.385(1), any agreement between the employe and employer to work for less than the applicable wage rate shall be no defense to such action.
Thus, the employer is liable for paying the overtime rate and liquidated damages where applicable. The county would be the employer where a county employe is involved; and the county would be the employer where the employe's salary, even though he is a deputy of a constitutional officer, is funded out of the county treasury. Thus, the "employer" liability will follow the usual source of funding of the affected employe's compensation.
It was pointed out in OAG 74-906, copy enclosed, that the legal way of determining hourly rate for purposes of overtime is found in the Kentucky Department of Labor's Regulation LAB-7, Section 8, under the term "salaried employes." Thus where an employe is paid at the rate of $500 per month, to arrive at the hourly salary, we must multiply $500 times 12 months for a total of $6,000 per year. Then $6,000 divided by 52 gives $115.38 as the weekly rate. Suppose he is working a 48 hour week. Then $115.38 divided by 48 equals $2.40 per hour. Thus he would be entitled, in this hypo, to $2.40 for the first 40 hours. He would be entitled to time and a half his regular base rate for all hours worked over 40, which would amount to $3.60 per hour. Regulation LAB-7 was taken from the Federal Wage and Hour Regulations dealing with the Federal Fair Labor Standards Act. See 803 KAR 1:060.
Question 3:
"If a county office is allowed to close one day a week can it be closed one half day on two different days?"
The answer is "yes". KRS 61.160 expressly provides that the public office may close any two (2) half days Monday through Saturday of any week.