The FLSA’s Professional Duties Test – Part 1

The FLSA’s Professional Duties Test – Part 1

The Fair Labor Standards Act (FLSA) generally requires that employers pay employees a time-and-half premium wage for hours worked past 40 in a workweek. Many employees are not entitled to this premium overtime pay, however, because they are “exempt.” In previous blog posts here, here and here, I have discussed two of the three kinds of exemptions from overtime pay – the executive exemption and the administrative exemption. This post introduces the professional exemption, the last of the three. The professional duties exemption involves not one kind of exemption but is actually several exemptions gathered together in one name. It will take me two posts to cover them all, this post and one more to come. That last one will by my last post in this series on FLSA exemptions.

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Board of Equalization & Review Procedures

[UPDATE:  This post was edited in late August 2014 to reflect the General Assembly’s ratification of S734, which among other actions permits non-attorneys to represent business entities before the Property Tax Commission.]

The county board of equalization and review, often called “the board of E&R,” is the first stop for a taxpayer who cannot resolve a dispute with the county assessor over a property tax assessment or exemption.   The Machinery Act defines the authority and jurisdiction of these boards but offers very little guidance as to how a board of E&R hearing should be conducted.  As a result, these boards operate very differently across the state’s 100 counties—as the Department of Revenue describes in its Appeals Handbook, hearings vary from “leisurely informal experiences to rigid, formalized proceedings.”

What’s the best approach? Boards of E&R hearings definitely don’t need to be as deadly serious as the famous courtroom scene in A Few Good Men.  (Here’s hoping your taxpayers are slightly less volatile than Jack Nicholson.) Nor do boards of E&R need to follow strict rules of evidence and civil procedure .  But as quasi-judicial proceedings, board of E&R hearings need to be formal enough so that all taxpayers have the opportunity to present their arguments to an unbiased board and to respond to rebuttal arguments presented by the county. Read more »

Coates’ Canons Turns 5

Coates’ Canons celebrated its five year anniversary this week! During the past five years, School of Government faculty members have authored over 680 posts, which have been viewed well over 1,000,000 times. We continually strive to improve the blog and appreciate your valuable feedback. We have made several recent changes based on your suggestions:

• All archived posts are now grouped by both category and subcategory. The categories are listed on the right hand side of the blog. To access the subcategories under each category, click on the [+]. To view the posts within each subcategory, simply click on the subcategory. The number of posts within each category and subcategory are included in parenthesis.
• The general search function is more robust. If you are searching for a blog post on a particular subject matter, simply type one or more key words in the search box in the upper right corner. A list of posts that contain that word or phrase will appear in the main window.
• The blog now includes a “featured posts” section. Periodically we will highlight a new group of archived posts on a related topic. We will use this section to create resource guides for courses and to provide ready information on relevant issues during the year.

Thank you for your continued support of Coates’ Canons! Keep the suggestions coming…

Do North Carolina Local Governments Have Authority to Assess Impact Fees for Water and Sewer Public Enterprises?

An impact fee is a charge on new development to pay for the construction or expansion of off-site capital improvements that are necessitated by and/or benefit the new development. A local government typically assesses impact fees as part of its development approval process. Paying the fees is often a condition of receiving a building permit or certificate of occupancy.

North Carolina local governments have specific statutory authority to require subdivision developers to pay fees in lieu for certain road and recreational land infrastructure projects that benefit the new development. See G.S. 160A-372 (municipalities); G.S. 153A-331 (counties). There is no specific authority to charge impact fees under general law, though. (A handful of units have local act authority to assess impact fees for certain purposes.) And North Carolina courts have repeatedly refused to hold that impact fee authority is implied from a unit’s regulatory powers, at least when the revenues are used to fund general government infrastructure. See, e.g., Lanvale Properties, LLC v. County of Cabarrus, 366 N.C. 142 (2012); Union Land Owners Ass’n v. County of Union, 201 N.C. App. 374 (2009), disc. rev. den’d, 364 N.C. 442 (2010); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38 (2010), aff’d by an equally divided court, 365 N.C. 305 (2011).

But what about the authority to impose impact fees on new development to fund a unit’s public enterprise (water or sewer) systems? Relying on a federal district court case from the late 1980’s, most local governments have assumed that there is implied authority under the public enterprise fee statutes (G.S. 160A-314 and G.S. 153A-277) to assess impact fees to mitigate against the impact of the new development on the unit’s water or sewer systems. This reliance may be misplaced, though. There are several reasons to question the continued validity of the court’s holding in that case and, correspondingly, to question the authority to impose impact fees to fund water and sewer capital outlay.

This blog post analyzes the federal district court case and discusses why it may not reflect current law. It then details the framework a North Carolina court likely would use to analyze this issue today. Read more »

Election Day Voting vs. Early Voting in North Carolina

There are two distinct ways to cast your ballot in person in North Carolina. The first is traditional election-day voting at your assigned precinct polling place. The other is what has commonly come to be called early voting at one of several sites established around your county. For a little history of early voting, click here.

How Early Voting is Different From Election Day Voting

Early voting has become extremely popular in North Carolina. In the presidential election in 2012, for example, 56.3% of voters cast their ballots at an early voting site. To the voter, the process of voting at an early voting site feels very much like the process of voting at the voter’s assigned precinct on election day. But there are some substantial differences. Read more »

Regulating Electronic Cigarettes in North Carolina, Part 2: Local Regulation

This is the second of two posts on the regulation of electronic cigarettes and other vapor products in North Carolina. Part 1 addressed federal and state regulation. Now it’s time to talk about local regulation.

This post focuses specifically on the authority of city or county governing boards and local boards of health. Another local entity with a strong interest in tobacco use policies is the local school board. I’m not going to address schools in this post, but more information about e-cigarette policies for K-12 schools is available on-line: see this February 2014 memo from State Superintendent June Atkinson to North Carolina’s local superintendents.

This post also focuses specifically on local regulation of the use of vapor products. As I wrote in part 1, local governments may not regulate the sale, distribution, display, or promotion of e-cigarettes or other vapor products. Such regulations are expressly preempted by G.S. 14-313, the 2013 law that banned the sale of vapor products to minors. However, that law did not address local regulation of use.  Read more »

Regulating Electronic Cigarettes in North Carolina, Part 1: Federal and State Regulation

UPDATE: The 2014 Technical Corrections Act (S.L. 2014-115) made further changes to state regulation of vapor products in correctional facilities. An updated summary of 2014 legislation on this issue is available here. 

If you watch television commercials or consume any form of news media, you’ve heard of e-cigarettes—battery-operated products that can look a lot like conventional cigarettes, but they don’t burn tobacco. They work by heating a cartridge with a solution that includes nicotine and sometimes flavors. Heating the solution produces a vapor that the e-cigarette user inhales. Many brands of e-cigarettes have an end that lights up when the product is in use, mimicking the appearance of a conventional tobacco cigarette. Use of the products is described as “vaping” rather than smoking.

E-cigarettes are the subject of pending federal rules, and they have recently been the subject of some state law regulation as well. Depending on where you live, they may also be the subject of local regulations. In this two-post series, I’ll summarize the current status of e-cigarette regulation in North Carolina. Today’s post addresses federal and state regulation of electronic cigarettes and other vapor products. Part 2 will address local government authority to regulate these products in North Carolina. Read more »