COUNTY ATTORNEY OFFICIAL OPINION #95-9

DATED: April 27, 1995

ISSUE PRESENTED:

May the City Utility Clerk, have her hours of work reduced, keeping the salary at the same level, resulting in a increase in compensation, without a total increase in total dollars of the salary, when the employee is a salaried employee.

BRIEF ANSWER:

So long as the employee is a salaried employee, and the employee does not exceed forty (40) hours per week, but in fact, works less than forty (40) hours per week, thirty-five (35) hours, it is permissible to have the salary remain the same, while the hours actually worked are reduced and is done at the time of the annual budget process. In discussing the issue with the Department of Labor and Industry, State of Montana, the issue is not an issue so much of comp-time, but an issue of appropriate accounting and audit procedures.

There should be no problem so long as the compensation is clearly reflected as compensation for thirty-five (35) hours per week, and is not reflected or recorded as forty (40) hours per week, with five (5) hours comp-time, since if the employee would have occasion to file a wage claim, there would be no record to show work over and above forty (40) hours per week to justify an award of comp-time.

Simply stated, the city records should show the actual hours worked, and not show or reflect any unearned comp-time. The city records should be consistent and agree with one another, and if they do so, there should be an adequate audit trail and no problem with the city’s audit.

DATED this day of April, 1995.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY

ATTORNEY FOR CITY OF FORSYTH