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![handle is hein.nyscompop/nyscomo2001 and id is 1 raw text is: Opinion 2001-1
Opinion 2001 - 1
This opinion represents the views of the Office of the State Comptroller at the
time it was rendered. The opinion may no longer represent those views if, among
other things, there have been subsequent court cases or statutory amendments
that bear on the issues discussed in the opinion.
CONSTITUTIONAL LAW -- Gifts and Loans (authority to pay overtime compensation in
excess of Fair Labor Standards Act minimum requirements)
PUBLIC OFFICERS AND EMPLOYEES -- Compensation (overtime pay in excess of
Fair Labor Standards Act minimum requirements) -- Overtime (pay in excess of Fair
Labor Standards Act minimum requirements)
GENERAL MUNICIPAL LAW §90; 29 USC §201 et sea.; NY CONST, ART. VIII, §1: A
village board may authorize overtime payments at reasonable rates of pay in excess of
the minimum payment requirements of the federal Fair Labor Standards Act. The
payments must be made pursuant to a pre-existing, detailed overtime plan adopted by
the village board that sets forth the terms, conditions and remuneration to be paid.
You ask whether a village, pursuant to General Municipal Law §90, may pay an
individual who is subject to the maximum hour/minimum overtime wage provisions of the
federal Fair Labor Standards Act (FLSA; 29 USC §201 et sea.) at a rate higher than
that provided for in the FLSA, without running afoul of the gift and loan prohibition of
article VIII, §1 of the State Constitution. For purposes of this opinion, we assume the
individual in question is not governed by a collective bargaining agreement.
General Municipal Law §90 authorizes the governing board of each municipal
corporation, by ordinance, local law, resolution, order or rule, to provide for the payment
of overtime compensation to any or all public officers and employees, except elective
officers and those officers otherwise excluded by law, for all time such officers and
employees are required to work in excess of their regularly established hours of
employment. Under section 90, overtime may be at the basic pay rate or at such other
rate as [the] governing board may authorize.
Article VIII, §1 of the State Constitution prohibits gifts and loans by municipal
corporations to or in aid of any private individual. In view of this constitutional provision, it
has been held that a local government may not provide overtime compensation pursuant
to section 90 in the absence of a pre-existing plan setting forth in detail the terms,
conditions and remuneration for the overtime work (Murray v Levitt, 47 AD2d 267, 366
NYS2d 674 app den 37 NY2d 707, 375 NYS2d 1026).
The FLSA establishes, i= alia, minimum requirements for certain employees who are
subject to that Act both for payment of overtime and for compensatory time off for a
workweek longer than that prescribed in the federal statute (29 USC §207[a],[o]).
Because it is now well-established that the FLSA applies generally to State and local
governments (Garcia v San Antonio MTA, 469 US 528, 105 S Ct 1005, 83 L Ed2d 1016),
New York State law applies in this area only to the extent not inconsistent with the FLSA
(1990 Opns St Comp No. 90-11, p 26). Thus, we have expressed the opinion that if the
overtime provisions of the FLSA are applicable to an individual, the individual is entitled
to overtime compensation as provided in the FLSA even though the municipality has not
implemented an overtime program as authorized by General Municipal Law §90 W(j.).
As noted, however, the FLSA sets forth only minimum overtime compensation
requirements. It has been held that they are not intended to preclude states and local
governments from providing greater compensation (see, e.g., Mitchell v Adams, 230 F
2d 527, 530). Therefore, since General Municipal Law §90 permits local governments to
provide overtime at such rate as the governing board may authorize, it is our
opinion that a village board may authorize overtime payments at reasonable rates of pay
in excess of the minimum payment requirements of the FLSA. In our opinion, the mere
fact that the amount paid is in excess of the minimum requirements of the FLSA would
Opinion 2001 - 1](ViewImageLocal?handle=hein.nyscompop/nyscomo2001&div=1&collection=&method=preview&ext=.png&size=3)