Request By:
Mr. Jerry W. Hammond, Director
Division of Labor Standards
Department of Labor
Frankfort, Kentucky 40601Mr. E. C. Grayson, Superintendent
Jefferson County Public Schools
P. O. Box 18325
3332 Newburg Road
Louisville, Kentucky 40218
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
Both of you seek an opinion of this office concerning the following fact situation:
Jefferson County school bus drivers were paid for periods of inclement weather in January and February of this year during "snow days" when the schools were closed. Also paid were school food service employees and school clerical staff.
We have consolidated the two requests and considered the accompanying material attached thereto. Mr. Grayson advises that the salary payments for "snow days" were seven included in the pay periods ending January 26 (4 days), February 23 (2 days) and March 9 (1 day). The school district takes the position that these were payments in advance for "days to be made up at the close of the school year as per the school calendar" . Because of bad weather in previous years, the school board provided for additional days to be added to the school calendar in the event schools were closed for snow or ice. Because the total days lost were seven, the schools closed May 31st instead of May 21st (including a weekend -Saturday and Sunday and a holiday-Monday [Memorial Day]).
The school district takes the position that the aforesaid employees cannot be compensated for the last seven days of work, since they were paid in advance - when they performed no service during the "snow days" in which schools were closed.
The Labor Department takes the position that these employees must be paid for the last seven days, even though they had been paid for non-service performing days in the past, under the minimum wage law and regulations and other labor statutes which we shall consider.
We are asked to perform the Solomonic task of deciding to whose "baby" these snow days belong - the school board's or the employees'.
Unfortunately, we cannot offer to split the "baby" apart and divide the remains between the competing parties. The "snow days" either belong in toto to one faction or the other, but not to both.
Because school teachers were threatened with loss of school days pay during the pay periods in which schools were closed, they convinced the Kentucky General Assembly to enact in 1978 KRS 160.291, which provides in subsection (1) in part that:
"All certified school employes holding a limited or continuing service contract . . . shall be paid regularly, on dates determined by the employing board of education during the school year. The gross salary received on each pay date will be an amount equal to the certified school employe's annual salary divided by the number of pay dates. Said salary amounts shall be paid on the prescribed pay dates without deduction for days on which schools were closed." (Emphasis supplied)
Subsection (3) further states that these payments are deemed to be for services rendered.
As we understand the system, certified personnel can choose one of several methods of payment (or the district may choose a method) - annual salary divided by 26 pay periods, 20 pay periods, or per diem based on annual salary divided by the school calendar of a minimum of 185 days. Some school systems use a monthly pay period. In whatever system that is used, the teacher receives his annual salary spread out over the period used (20, 26, per diem, monthly for certain number of months) including recognized holidays, in-service days, opening and closing days, sick leave and personal leave days. He is not paid for "snow days" although he may receive a check without deduction for the pay period in which snow days occur.
Jefferson County's district has chosen to pay noncertified personnel, such as bus drivers, clerks, custodial and lunchroom workers at the same time as it pays its certified employees.
Generally, the minimum wage law does not affect teachers and other certified personnel - they are exempted as "professional" employees (KRS 337.010(2)(a)(ii)), provided they meet minimal requirements set out in Department of Labor Regulation 803 KAR 1:070, Section 3.
However, it does apply to such persons as bus drivers, custodial workers and other noncertified personnel.
The Department of Labor takes the position that if an employer chooses to pay employees for time not actually worked (whatever reason - vacation, sickness or lack of available work), he may not at a later date recoup such amounts unless the employee was specifically advised at the time of payment that such amounts must be repaid either in time or money at some later specified date.
This view is bolstered by KRS 337.060 which provides:
"No employer shall withhold from any employe any part of the wage agreed upon. This section shall not make it unlawful for an employer to withhold or divert any portion of an employe's wage when the employer is authorized to do so by local, state or federal law or when a deduction is expressly authorized in writing by the employe to cover insurance premiums, hospital and medical dues, or other deductions not amounting to a rebate or deduction from the standard wage arrived at by collective bargaining or pursuant to wage agreement or statute, nor shall it preclude deductions for union dues where such deductions are authorized by joint wage agreements or collective bargaining contracts negotiated between employers and employes or their representative."
To square the school board's action of refusing pay for the last seven days to noncertified personnel with KRS 337.060, there must be a written agreement to do so or there must be some law authorizing such deduction.
We do not find a specific statute for noncertified personnel similar to KRS 160.291, since that is limited to certified personnel.
We have copies of sample bus driver contracts, one for board owned vehicles and one for privately owned vehicles. The latter type provides in part:
"3. The Board further agrees to pay the Bus Contractor for the services of the school buses and drivers and/or special type vehicles and drivers shown in item (A-2) of this contract on a prorated basis. Payments to be made at the pay period shown in this item and for the period of time covered by each pay period as shown in this item. See your school calendar for pay period and time covered."
The board owned vehicle contract provides in part that: "The Board agrees: 1. To pay the Driver for his or her regular day-to-day services rendered at the rate of ."
Neither of these contracts specifically deals with "snow days" nor could we - charitably - classify such contracts as models of clarity.
The apparent intent is to pay only for the days and hours actually driven. However, we understand that bus drivers in Jefferson County are paid and earn sick pay, are paid for inservice days and recognized school holidays (even though they drive no buses on such holidays) . So, the contracts themselves (even though they refer to the school calendar) do not clearly indicate a written agreement to duduct "snow days" from salaries. Thus, it could be argued that the school board has violated KRS 337.060 in making a deduction without written agreement. As to other noncertified personnel such as cafeteria workers, custodians and others, we are not even aware of a written contract concerning their positions. None was furnished to us and we assume their employment is oral or as approved on the school board's minutes.
But, even in the private sector, KRS 337.060 would not be interpreted to require an employer to pay an employee for time not worked, and the employer could deduct such days from the employee's pay without violating that statute. Usually, the deduction occurs in the same pay period when the days off occurred. Here, no deduction was timely made; it was made at the end of the school year.
Department of Labor Regulation 803 KAR 1:088 (7) requires that cash advances must be agreed to in writing with certain limitations on repayment.
In the absence of such agreement, a payment of wages for work not performed must be considered in the nature of a gift or bonus.
If the school district were a private employer, we would have no problem in determining that the advance was a gift or a bonus.
However, the school board is a public, governmental entity. A private employer can make wage agreements, give bonuses and gifts in a more flexible fashion than can the public, governmental entity. The latter's sphere of operation is more closely hedged in and restricted by statute, the Constitution and by regulation.
Section 186 of the Kentucky Constitution provides:
"All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose, and the General Assembly shall by general law prescribe the manner of the distribution of the public school fund among the school districts and its use for public school purposes."
Section 3 provides in part:
". . . no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; . . ."
Were we to interpret the Kentucky labor laws to require additional payment to bus drivers for the last seven school days because no written agreement authorized a deduction for "snow days" and the prepayments for "snow days" in the pay period when they occurred are to be considered a bonus or gift, we would violate the aforesaid Sections 3 and 186 of the Kentucky Constitution.
Where there is a conflict between statutes and the Constitution, the Constitution is the supreme document to which we must adhere.
Had the legislature determined that "snow days" were fringe benefits or the parties had agreed to pay for such days, the aforesaid sections of the Constitution of Kentucky would not have been violated because "snow days" would have been part of the consideration and payment for services rendered, just as sick leave, holiday and vacation pay are now considered. Emoluments for services rendered may be given both in cash and in other forms of payment.
But, such is not the case under the facts presented to this office. We have no evidence either by statute or agreement that "snow days" were intended to be additional fringe benefits of the pay schedule, either for certified or noncertified personnel. All that KRS 160.291 did was allow the teacher to get paid his salary without interruption during the pay period in which "snow days" occurred. The teacher still had a school year of 185 days, and received the same annual salary. Instead of completing the year on May 21, he worked until May 31 to pick up the seven "snow days". He got no more total pay. The same pay was spread out over a longer period.
The bus driver and other noncertified personnel likewise cannot get additional pay for "snow days" because they did not work those days, there was no agreement to pay for "snow days" as part of the emoluments of the job, nor is there a statute or regulation which considered "snow days" part of the emoluments of their general service.
In short, it is our opinion that the school board cannot pay the noncertified personnel for "snow days" and having advanced payment to them for "snow days", such payment may be credited against the last seven days worked.
Should the board desire to make payment for "snow days" in the future, the contracts should clearly point out which days are covered and which are not. In fact, the contracts should, in any case, be rewritten to show clearly which days and hours are to be considered pay dates and which are not. Merely referring to "school calendars" or "pro rata" are insufficient methods of spelling out the parties' individual rights and duties.
In the absence of such clarification, this office may again be required to wield Solomon's sword and threaten to sever the child for the disputants. This, we do not relish.