¶0 The Attorney General has received your request for an official opinion asking, in effect:
1. Does the assignment of county employees to a work week of four ten-hour days conflict with Article XXIII , Section 1 of the Oklahoma Constitution and with 61 O.S. 3 - 61 O.S. 5 (1981), both of which appear to mandate an eight-hour work day?
2. Does 61 O.S. 3 (1981), requiring that county employees be paid on "a daily basis," conflict with the minimum hourly wage provisions of the Fair Labor Standards Act, 29 U.S.C.A. 201-219?

¶1 The answer to your first question requires an exploration of the meaning of Oklahoma's "eight-hour day" laws. The Oklahoma Constitution, Article XXIII , Section 1, provides as follows:

(Emphasis added).

¶2 The Oklahoma Legislature has enacted several statutes to implement Article XXIII , Section 1. Title 61 O.S. 3 through 61 O.S. 5 (1981), the predecessor provisions of which were adopted as a group in 1907, flesh out the mandate of Article XXIII , Section 1. It is necessary to set out those provisions at length:

(Emphasis added).

¶3 The constitutionality of 61 O.S. 3 through 61 O.S. 5, containing penal provisions, was considered by the Court of Criminal Appeals of Oklahoma in Byars v. State, 102 P. 804 (Okl. Cr. 1909). In holding that the eighthour day legislation is constitutional, the Court of Criminal Appeals relied heavily upon a landmark decision by the United States Supreme Court validating a very similar Kansas statute. In Atkin v. State, 191 U.S. 207, 48 L.Ed. 148 (1906), the elder Justice Harlan, writing for the majority, recited with approval the then-dominant rationale for the eight-hour day in these words:

191 U.S. at 222, 48 L.Ed. at 158 (emphasis added).

¶4 The applicability of the statutory limit to all public works was regarded by the Atkin Court as dispositive of the equal protection argument urged by those seeking to overturn the statute.

¶5 The Byars Court quoted extensively from the Atkin decision in explaining its decision, which is best summarized in the language of the fourth syllabus by the Court:

102 P. at 804 (emphasis added).

¶6 The difference between the Kansas and Oklahoma statutes, as viewed by our Court of Criminal Appeals, was simply that the constitutional sanction for the Kansas statute was in that state's police power; the Oklahoma statute is, on the other hand, rooted in the will of the people as expressed in the Constitution, Article XXIII , Section 1. See, Byars v. State, supra at 808.

¶7 The validity of the eight-hour day limitation was reaffirmed in State v. Tibbetts, 205 P. 776 (Okl. Cr. 1922), a case in which the State's police power was invoked to overcome the argument that the statute had no constitutional application to charter cities. Id. at 777-778. As the Tibbetts Court remarked, some thirteen years after Byars:

Id. at 778.

¶8 In 1926, the U.S. Supreme Court struck down, in a decision which did not touch upon the eight-hour day principle, that portion of the Oklahoma statute which required employees on public works projects to be paid at the "current rate of wages in the locality where the work is performed [61 O.S. § 3] " as void for vagueness. Connally v. General Construction Company, 269 U.S. 385, 393, 70 L.Ed. 322, 329 (1926).

¶9 In a later, significant Oklahoma case, Stephens v. Borgman, 210 P.2d 176 (Okl. 1949), our Supreme Court held that the eight-hour day statute did not authorize private actions to enjoin violations of 61 O.S. 3 - 61 O.S. 5, while recognizing, at least implicity, the continuing vitality of the maximum work-day limits of those statutes. Id. at 180. See also, A.G. Opin. No. 83-219, which construes Article XXIII , Section 1 and 61 O.S. 3 - 61 O.S. 5 (1981) of the Oklahoma Constitution as establishing maximum, not minimum, hours of work for county employees.

¶10 It should be noted that this conclusion is based upon an analysis of the statutes cited above. Article XXIII , Section 1 of the Oklahoma Constitution, on the other hand, is not self-executing. New Mexico, for example, has a virtually identical constitutional provision, absent, however, enabling legislation of the type found in title 61 of the Oklahoma Statutes. In Jaramillo v. City of Albuquerque, 329 P.2d 626, 13 W.H. Cases 824 (N.M. 1958), the New Mexico Supreme Court held that the constitutional provision considered alone, was not self-executing in affirming a declaratory judgment adverse to employees of the City of Albuquerque. Dicta in the Stephens case, supra at 180, suggests that the Oklahoma Supreme Court would reach a similar conclusion as to the directory nature of this provision. In any event, the conclusions reached in this Opinion are not based solely on Article XXIII , Section 1, but consider, rather, the implementing legislation.

¶11 It is important to emphasize that the eight-hour day limitation does not apply to all classes of employees. Title 61 O.S. 3 (1981) enumerates the classifications covered by the eight-hour day maximum: "laborers, workmen, mechanics, prison guards, janitors of public institutions, or other persons...." (Emphasis added).

¶12 Applying the doctrine of ejusdem generis, the Oklahoma Supreme Court, in White v. Wint, 638 P.2d 1109 (Okl. 1982), held that the eight-hour day provision was limited to employees similar in kind to the enumerated categories, and did not cover a state biologist employed by the State Department of Wildlife Conservation. Id. at 1114. Thus, the eight hour limitation will not apply to all county employees.

¶13 Three other exceptions to the eight-hour maximum rule, some of them quite significant, should also be noted. First, exceptions are permitted for extraordinary emergencies, namely in time of war. 61 O.S. 3. Second, where it is necessary to protect property or human life, the eight-hour maximum may be exceeded. 61 O.S. 3. Third, work connected with highway construction and maintenance, sewer and waterworks systems, dams and levees, canals, drainage ditches, airport grating, drainage, surfacing, seeding and planting is also excluded from the eight-hour limitation. 61 O.S. 4.

¶14 We are constrained to find, therefore, that with the exceptions enumerated above, 61 O.S. 3 - 61 O.S. 5 (1981), establish absolute maxima above which covered county employees are not permitted to work. The relevant statutes do not provide the county the necessary flexibility to schedule four ten-hour work days in a given week, except in the exempt categories noted above.

¶15 As a historical matter, we observe that, with the exception of a single proviso added in 1949 to 61 O.S. 4 of the eight-hour day law, these provisions have remained unchanged for nearly eighty years. Over the intervening years, the Legislature has enacted protective labor statutes covering numerous subjects: establishing minimum wages on public works ( 40 O.S. 196.1 et seq. (1981) ); prohibiting racial discrimination in public works contracts ( 40 O.S. 195.1 seq. (1981) ); establishing the Oklahoma Minimum Wage Act (40 O.S. 197.1 seq. (1981) ); prohibiting sex-based discrimination in wages ( 40 O.S. 198.1 (1981) ); and adopting the Oklahoma Occupational Health and Safety Standards Act of 1970 ( 40 O.S. 401 et seq. (1981) ), to name some of the most significant. Federal wage and hour policy has also undergone substantial changes as is suggested by the dicussion below of changes in the Fair Labor Standards Act over the past forty years.

¶16 Notwithstanding nearly eight decades of dramatic political, industrial, and sociological change, Article XXIII , Section 1, and 61 O.S. 3 - 61 O.S. 5 (1981) remain, virtually unchanged, the law of our State. These statutory and constitutional provisions cannot be repealed or revised by judicial or quasi-judicial fiat.

¶17 The question remains, however, whether Oklahoma law in this area may have been pre-empted by federal law controlling the same subject matter. The applicability of the Fair Labor Standards Act ("FLSA"), 29 U.S.C.A. 201-219, to state and local governmental employees has had a volatile and checkered career, both in the Congress and in the United States Supreme Court. When the FLSA was first enacted in 1938, its wage and overtime provisions did not apply to employees of state and local governments. Sections 3(d), 13(a)(9), 52 Stat. 1060, 1067. In one set of amendments in 1966, Congress extended FLSA protections to public hospitals, schools, and certain mass-transit carriers. Sections 102(a) and (b), 80 Stat. 831. The application of FLSA to public schools and hospitals was held to be within Congress' power under the Commerce Clause. Maryland v. Wirtz, 392 U.S. 183, 20 L. Ed. 2d 1020 (1968). In 1974, Congress extended FLSA coverage of virtually all state and local government employees. Sections 6(a)(1) and (6), 88 Stat. 58, 60.

¶18 In 1976, the United States Supreme Court abruptly overruled Maryland v. Wirtz, supra, holding that the FLSA could not be applied constitutionally to the "traditional governmental functions" of state and local governments. National League of Cities v. Usery, 426 U.S. 833, 49 L.Ed.2d 245 (1976). Nine years later, the Tenth Amendment analysis of National League of Cities, was discarded by a sharply divided Court in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 83 L.Ed.2d 1016 (1985). Congress then responded by further amending FLSA, P.L. 99-150, 99 Stat. 787, to soften somewhat the impact of the Garcia decision and the resulting FLSA coverage of state and local governments. See generally, Alley, Duvall, and Kornreich, "Local Governments and the Fair Labor Standards Act: The Impact of Garcia v. SAMTA and the 1985 FLSA Amendments," XV Stet. L. Rev. 715, 716-726 (1986). The result of this evolution in the law is that the wages and overtime hours o most state and local government employees are controlled by FLSA.

¶19 Returning to the preemption question, we call your attention to 29 U.S.C.A. 218(a):

(Emphasis supplied).

¶20 The FLSA established no maximum for hours worked, merely providing that hours worked in excess of forty per week be paid at "time-and-a-half." 29 U.S.C.A. 207(a). Because the Oklahoma standard is more stringent than that provided by federal law, there is no federal preemption, and state law controls. Cases from other jurisdictions have applied 29 U.S.C.A., 218(a) to reach similar conclusions. See e.g., Webster v. Bechtel, 621 P.2d 890, 899-900 (Alaska 1980); Elkins v. Showcase, Inc., 704 P.2d 977, 984 (Kan. 1985); Glick v. State, 509 P.2d 1, 4-5 (Mont. 1973); Maccabees Mutual Life Insurance Co. v. Perez-Rosado, 614 F.2d 45, 46 (1st Cir. 1981). It is only when state statutes are in conflict with, or contrary to, the provisions of FLSA that the latter's pre-emptive effect is triggered. Elkins v. Showcase, Inc., supra at 983-984.

¶21 Therefore, as noted above, the eight-hour maximum day, established by the Oklahoma Constitution and the implementing statutory law, remains unaffected by the FLSA.

¶22 Your second question asks whether either Oklahoma law or the FLSA requires that county employees be paid on an hourly basis. We note first, that 61 O.S. 3 (1981) merely requires that county employees "shall be paid on the basis of eight hours constituting a day's work." The statute, by its own terms, neither requires nor prohibits payment of an hourly wage. Likewise, the FLSA permits employees to be paid by non-hourly methods so long as the hourly rate can be ascertained by an appropriate arithmetic computation. See, Walling v. Sun Publishing Co., 47 F.Supp. 180 (W.D. Tenn. 1942), aff'd. 140 F.2d 445 (6th Cir. 1944), cert denied, 332 U.S. 728, 88 L.Ed. 1564 (1944). See also, 29 C.F.R. 778.108, .109, .112, and .113 for procedures to be used in computing correctly the hourly rate for employees who are paid on a non-hourly basis.

¶23 There is, therefore, no requirement, state or federal, that county employees be paid on an hourly basis so long as their hourly rate of pay conforms to the minimum wage standards of 29 U.S.C.A. 206.

ROBERT H. HENRY
ATTORNEY GENERAL OF OKLAHOMA
NED BASTOW
ASSISTANT ATTORNEY GENERAL