After the 1985 Garcia and Loudermill Supreme Court decisions, did Maryland have to change its state employee overtime and firing rules?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General whether two Supreme Court decisions handed down earlier in 1985, Garcia v. San Antonio Metropolitan Transit Authority and Cleveland Board of Education v. Loudermill, required changes to Maryland's state personnel statutes, regulations, or administrative practices, with particular concern about how Loudermill might affect suspending or firing permanent part-time, unclassified, and probationary employees.

On Garcia, which overruled National League of Cities v. Usery and made state employees subject to the federal Fair Labor Standards Act, the opinion found Maryland was already paying at least minimum wage and time-and-a-half overtime to everyone the FLSA covered, but flagged that the statutory formulas in Article 88B, §23B(c) and Article 100, §76(a)(3) and (d)(1), which calculated overtime over two-week or single-day periods, could in some fact patterns fail to require overtime the FLSA demanded, even though nothing in those provisions forbade paying it. The office had already told the Governor in a May 1985 bill-review letter that two pending bills on state and Natural Resources Police overtime could be administered consistently with the FLSA and recommended amending them to match the federal formula going forward. On Loudermill, which required pre-termination notice and an opportunity to respond for public employees with a property interest in continued employment, the opinion walked through each category of state worker, classified employees (who could only be fired for cause and already received written charges, a hearing before suspension, and a full hearing before final removal), contractual employees (who had no property interest beyond their contract terms and so no constitutional right to a pretermination hearing), probationary employees (whose more limited notice-and-appeal procedures were adequate given their limited property interest), and unclassified employees (who served at their superiors' pleasure and received a comparable, if more limited, level of process), concluding that existing Maryland procedures for every category already satisfied Loudermill.

Currency note

This opinion was issued in 1985. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the 1985 Garcia decision mean Maryland had to start paying state employees overtime it hadn't paid before?
Not according to the opinion; it found the state was already paying at least minimum wage and required overtime to every employee category the FLSA covered, but recommended amending two Maryland overtime statutes because their two-week and daily calculation formulas could, in some circumstances, fail to trigger overtime pay that the FLSA required.

Under Loudermill, did every state employee get a hearing before being fired?
No. The opinion found only classified employees, who could not be removed except for cause, had a property interest in their jobs entitling them to full pretermination notice and a hearing. Contractual, probationary, and unclassified employees had a more limited or no property interest and were entitled to correspondingly more limited procedures, which the opinion found Maryland's existing regulations already provided.

Could a probationary state employee in Maryland be fired without much explanation in 1985?
The opinion found that a probationary employee could be rejected at any time on a written statement of reasons whose sufficiency was not open to challenge, though the employee still received two weeks' notice and a limited right to appeal on procedural or discrimination grounds, which the opinion found adequate given the probationary employee's limited property interest under Small v. Secretary of Personnel, 267 Md. 532, 535 (1973).

Why did the Attorney General recommend changing overtime laws that it said already complied with federal law in practice?
The opinion distinguished between how the law was being administered and how it was written: the formulas in Article 88B, §23B(c) and Article 100, §76(a)(3) and (d)(1) did not affirmatively forbid FLSA-required overtime, so current practice could comply, but the statutory text itself did not guarantee that result in every work-schedule scenario, so the office urged amending the text to remove that risk.

Background and statutory framework

The Fair Labor Standards Act, 29 U.S.C. §§201 through 219, set a minimum wage and required time-and-a-half pay for hours worked over 40 in a week, 29 U.S.C. §§206(a)(1) and 207(a)(1), subject to an exemption for bona fide executive, administrative, or professional employees, 29 U.S.C. §213(a)(1), and a categorical exclusion for elected officials and their immediate staff, 29 U.S.C. §203(e)(2)(C). The FLSA had been extended to state employees in 1974, but National League of Cities v. Usery, 426 U.S. 833 (1976), held the Tenth Amendment barred its application to state employees performing "traditional governmental functions." Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), overruled that decision, concluding the Commerce Clause supported applying the FLSA to state and local government employees generally. The opinion reviewed Maryland's overtime provisions, Article 100, §76(a) through (d) and Article 88B, §23B(c), and the FLSA's administrative exemption regulations, 29 C.F.R. §§541.0 through 541.602, alongside COMAR 06.01.01.091(1) governing contractual-employee overtime, and concluded existing administration conformed to federal law even though the statutory formulas themselves left a theoretical gap.

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), held that once state law creates a property interest in continued public employment, the Fourteenth Amendment's Due Process Clause, not the legislature, dictates the minimum pretermination procedure: oral or written notice of the charges, an explanation of the evidence, and an opportunity to respond before termination. The opinion applied that framework to Maryland's classified service under Article 64A, §33(b)(2)(i) (removal only for cause, after written charges and a hearing) and its implementing regulations (COMAR 06.01.01.48A, 48B, 57, and 03.04), to contractual employees under Article 64A, §§15A and 51B, relying on Board of Regents v. Roth, 408 U.S. 564 (1972), to probationary employees under Article 64A, §33(b)(1) and COMAR 06.01.01.37A, 37F, 59, and 59A, relying on Small v. Secretary of Personnel, and to unclassified employees serving at will under COMAR 06.01.01.60 and 62, relying on Patterson v. Ramsey, 413 F.Supp. 523 (D. Md. 1976), and a prior Attorney General opinion, 61 Opinions of the Attorney General 219 (1976).

Citations

Statutes:

• Article 88B, §23B(c) of the Maryland Code (overtime for Maryland State Police on a 10-hour workday)
• Article 100, §76(a)(3) of the Maryland Code (two-week overtime calculation for non-5-day-schedule units)
• Article 100, §76(d)(1) of the Maryland Code (Natural Resources Police overtime)
• 29 U.S.C. §§201 through 219 (Fair Labor Standards Act)
• 29 U.S.C. §206(a)(1) (federal minimum wage)
• 29 U.S.C. §207(a)(1) (time-and-a-half overtime requirement)
• 29 C.F.R. §778.316 (no substitution of comp time for required overtime)
• 29 U.S.C. §213(a)(1) (executive/administrative/professional exemption)
• 29 U.S.C. §203(e)(2)(C) (exclusion for elected officials and staff)
• Article 64A, §27(a) of the Maryland Code (Secretary of Personnel's pay plan)
• Article 100, §76(a) of the Maryland Code (general State overtime requirement)
• Article 100, §76(b) of the Maryland Code (compensatory time exception for admin/exec/professional employees)
• 29 C.F.R. §§541.0 through 541.602 (federal regulations for the FLSA administrative exemption)
• Article 100, §76(c) of the Maryland Code (law enforcement overtime exception)
• COMAR 06.01.01.091(1) (contractual employee overtime)
• Article 100, §§81 through 93A of the Maryland Code (State Wage and Hour Law)
• Article 100, §83 of the Maryland Code (minimum hourly wages generally)
• Article 100, §§76 through 77A of the Maryland Code (specific State employee wage/hour provisions)
• Article 64A, §33(b)(2)(i) of the Maryland Code (classified employee removal only for cause)
• Article 64A, §51(a)(2) of the Maryland Code (definition of permanent part-time employee)
• COMAR 06.01.01.48A (written charges required for classified employee discharge)
• COMAR 06.01.01.48B (timing of charges for suspension pending removal)
• COMAR 06.01.01.57 (early hearing right on suspension)
• COMAR 06.01.03.04 (full evidentiary hearing on request)
• Article 64A, §§15A and 51B of the Maryland Code (contractual employees)
• COMAR 06.01.01.37A (probationary period required)
• Article 64A, §33(b)(1) of the Maryland Code (rejection of probationary employees)
• COMAR 06.01.01.37F (notice and appeal for probationary rejection)
• COMAR 06.01.01.59 (sufficiency of rejection reasons not challengeable)
• COMAR 06.01.01.59A (limited grounds for probationary appeal)
• COMAR 06.01.01.61A (grounds for classified employee appeal)
• COMAR 06.01.01.60 (unclassified employee termination notice)
• COMAR 06.01.01.62 (unclassified employee appeal)
• §6-105(a)(2) of the State Government Article (Attorney General staff serve at pleasure)
• SG §2-1207(g) (tenure rights for Department of Fiscal Services professional employees)
• COMAR 06.01.01.47 (enumerated causes for classified employee discipline)
• 29 U.S.C. §201 et seq. (FLSA, general reference in the attached bill-review letter)
• 29 USC §207 (overtime requirement, general reference in the attached bill-review letter)

Cases:

• Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985)
• Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)
• National League of Cities v. Usery, 426 U.S. 833 (1976)
• Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190 (5th Cir. 1983)
• Northern Pipeline Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 88 (1982)
• Chevron Oil Company v. Hudson, 404 U.S. 97, 106-107 (1971)
• Board of Regents v. Roth, 408 U.S. 564, 578 (1972)
• Small v. Secretary of Personnel, 267 Md. 532, 535 (1973)
• Patterson v. Ramsey, 413 F.Supp. 523 (D. Md. 1976)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1985/Volume70_1985.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PERSONNEL

Compensation—Discharge Procedures—State Personnel Regulations and Administrative Procedures Need not be Changed to Comply with Recent Supreme Court Decisions.

October 2, 1985

The Honorable Timothy F. Maloney
Maryland House of Delegates

You have requested our opinion on the impact on existing State personnel statutes, regulations, and administrative policies of two recent Supreme Court cases, Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), and Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). With respect to the decision in Loudermill, you indicate that you are particularly concerned about the effect, if any, that the decision may have on suspensions or terminations of permanent part-time, unclassified, and probationary employees.

In our opinion, neither case requires any significant departure from current State practices.1 However, in light of the decision in Garcia, we believe that it would be advisable to amend Article 88B, §23B(c) and Article 100, §76(a)(3) and (d)(1) of the Maryland Code to conform to the federal Fair Labor Standards Act (the "FLSA").

I
Compensation of Employees After Garcia

A. Applicability of the Fair Labor Standards Act to State Employees

The FLSA, 29 U.S.C. §§201 through 219, establishes minimum hourly wages for employees and requires payment at "overtime" rates for hours worked in excess of 40 hours during a workweek. In 1974, Congress amended the FLSA to extend its provisions to most employees of the states and their political subdivisions. However, in National League of Cities v. Usery, 426 U.S. 833 (1976), the Supreme Court held that the Tenth Amendment to the United States Constitution acts as an affirmative bar to Congress's otherwise broad power to regulate "traditional governmental functions" under the Commerce Clause. 426 U.S. at 842-43.2 Accordingly, the Court concluded that "insofar as the challenged [1974] amendments operate to directly displace the States' freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. I, §8, cl. 3". 426 U.S. at 852. Hence, the FLSA did not apply to state employees engaged in "traditional governmental functions".

Early this year, the Supreme Court overruled that decision. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). Essentially, the Court adopted the reasoning of the dissent in National League of Cities: that "restraints upon exercise by Congress of its plenary commerce power lie in the political process and not in the judicial process". 426 U.S. at 857 (Brennan, J., dissenting). See Garcia, 469 U.S. at 556. Although the Court in Garcia did not rule out the possibility that there may be affirmative limits on federal action affecting the states under the Commerce Clause, the Court nonetheless declined to speculate as to what those limits might be. Id. More specifically, the Court concluded that "Congress' action in affording [mass transit] employees the protections of the wage and hour provisions of the FLSA contravened no affirmative limit on Congress' power under the Commerce Clause". 469 U.S. at 555-56. As a result, states and their political subdivisions are now subject to the FLSA.

B. FLSA Requirements

The FLSA requires that employers generally pay their employees at least $3.35 an hour. 29 U.S.C. §206(a)(1). In addition, each employee generally must be paid at least one and one-half times the normal rate for any time worked in excess of 40 hours in a workweek. 29 U.S.C. §207(a)(1).3 Compensatory time off may not be substituted for required overtime pay, even if an employee would prefer compensatory time off. 29 C.F.R. §778.316.

The Act excepts from those requirements persons employed in "a bona fide executive, administrative, or professional capacity". 29 U.S.C. §213(a)(1). Furthermore, elected officials and their appointees, staff, and immediate advisors are excluded from the FLSA altogether. 29 U.S.C. §203(e)(2)(C). As a general rule, however, the Act is to be construed liberally in favor of coverage. Donovan v. Sabine Irrigation Co., Inc., 695 F.2d 190 (5th Cir. 1983).

C. State Compliance

1. Minimum wage

Under Article 64A, §27(a) of the Maryland Code, the Secretary of Personnel is required to prepare a recommended pay plan for all classes of positions in the classified and the unclassified service. If approved by the Governor and funded in the budget, the pay plan takes effect at the time the next budget takes effect. Nothing in State law sets a minimum wage for State employees; nonetheless, no State employee is currently paid less than the federal minimum wage.4

2. Overtime

Article 100, §76(a) generally requires that each State employee be paid extra compensation for hours worked "in excess of the normal workweek for his department, bureau, board, commission, or agency". There are, however, certain exceptions to that requirement. Article 100, §76(b) authorizes the Secretary of Personnel to designate "bona fide administrative, executive, and professional employees" who will receive compensatory time off rather than overtime pay. This exception is clearly modeled on the FLSA exception in 29 U.S.C. §213(a)(1). Accordingly, it presents no problem, as long as it is administered in conformance with the federal regulations governing that FLSA exemption, which are codified in 29 C.F.R. §§541.0 through 541.602. We understand that the administration of Article 100, §76(b) presently does conform to those federal regulations.

State law enforcement personnel are also excepted from the general overtime provisions, by Article 100, §76(c), but are compensated for overtime under Article 100, §76(d). And, regulations adopted by the Department of Personnel provide that contractual employees are to be paid overtime "if appropriate . . . according to applicable statutes and regulations". COMAR 06.01.01.091(1). We understand that these exceptions, like that embodied in Article 100, §76(b), are being administered in conformance with federal law. Thus, Maryland is presently paying at least some overtime compensation to all State employees for whom the FLSA requires it.

However, it appears that the Maryland statutory formulas for calculating overtime might not provide extra compensation for all the hours for which the FLSA requires it. Both Article 100, §76(a)(3) and Article 88B, §23B(c) allow overtime for certain employees to be computed on the basis of a two-week, 80-hour work period.5 Hence, those provisions would not necessarily require that an employee who works less than 40 hours in one week and more than 40 in the next be paid overtime, while the FLSA clearly requires that such an employee be paid overtime for the hours over 40 worked in the second week. Similarly, §76(d)(1)(i) provides that Natural Resources Police officers are to be paid overtime "only for authorized hours of work in excess of their normal 8-hour daily work day".6 That provision would not require that a person who works eight hours a day for six days in a week be paid overtime, while the FLSA would require overtime compensation for the full sixth day.

Thus, each of these provisions fails to require overtime compensation for some of the time that, under the FLSA, must be compensated at one and one-half times the normal rate. However, none affirmatively forbids payment of overtime compensation under circumstances in which the FLSA requires it. Because of this absence of express conflict, our review of the bills proposing these provisions concluded that they could be administered so as not to violate the FLSA, and that they must be so administered. Bill Review Letter (S.B. 345 and H.B. 1129) from Stephen H. Sachs, Attorney General, to Harry Hughes, Governor (May 20, 1985). At the same time, we suggested that the provisions be amended to conform to the FLSA. A copy of our letter is attached.

D. Summary

It is our opinion that this State's current personnel practices comply with the FLSA, in that all employees are paid at least minimum wage and all employees who must be paid "time and a half" for overtime receive such compensation. However, the formulas governing the calculation of overtime hours should be amended to conform to the federal act, to prevent any possibility of their being administered in a way that would violate the FLSA.7

II
Discharge of Employees After Loudermill

A. Due Process Requirements

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court reaffirmed prior decisions holding that state law may confer on public employees a property right, entitled to due process protection, in continued employment. 470 U.S. at 538. However, the Court went on to clarify that the property interest so conferred is not conditioned on or defined by the legislature's choice of procedures for its deprivation. 470 U.S. at 540-41. Rather, the procedural safeguards that govern deprivation of such a property interest are mandated by the Due Process Clause of the Fourteenth Amendment. 470 U.S. at 541. Thus, the legislature does not have a completely free hand in establishing the procedures for terminating employees. In particular, when an employee with a property right in continued employment is terminated, post-termination review procedures alone will not pass constitutional muster. Instead, due process requires that, before termination, the employee be given oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present, in person or in writing, reasons why the proposed action should not be taken. 470 U.S. at 546.

B. Classified Employees

To determine whether the Loudermill decision requires pretermination hearings for particular groups of State employees, it is first necessary to determine whether those employees have a property interest in their employment. In Loudermill, the Supreme Court found that the respondents possessed property rights in their continued employment because they were "classified civil service employees" who could not, under state law, be dismissed except for cause. 470 U.S. at 538-39.

Similarly, Article 64A, §33(b)(2)(i) of the Maryland Code provides that "[n]o employee who has completed his probation may be permanently removed from the classified service except for cause". Thus, classified employees clearly have a property right in their employment. And the term "classified employees" includes permanent part-time employees.8

Under Article 64A, §33(b)(2)(i), a classified employee may only be discharged "upon written charges and after an opportunity to be heard in his own defense". Cf. Loudermill, 470 U.S. at 546 (notice of charges may be oral or written). The charges must state the cause for removal and the specific acts that constitute such cause and must inform the employee of his or her right to appeal the charges within 10 days. COMAR 06.01.01.48A.9 If an employee is to be suspended without pay pending removal, the charges must be filed within two weeks of the suspension. COMAR 06.01.01.48B.

Moreover, in the case of a suspension, the employee is entitled to an early hearing on the suspension itself. COMAR 06.01.01.57. Thus, before any significant loss of pay, the suspended employee receives a hearing, and before final separation from State service, the employee receives another, full hearing. Finally, the hearing provided is more formal than that which Loudermill would seem to require. Compare COMAR 06.01.03.04 (either party may request full evidentiary hearing) with Loudermill, 470 U.S. at 545 (full evidentiary hearing need not be provided). Thus, in our view, the procedures now provided for the termination of classified employees, including permanent part-time employees, clearly meet the due process requirements enunciated in Loudermill.

C. Other Employees

For different reasons, we believe the current procedures for termination of contractual, probationary, and unclassified employees are also valid under the Supreme Court's decision in Loudermill.

1. Contractual employees

Contractual employees are employed for fixed periods, set by the terms of their contracts. Unquestionably, they have no property interest in their employment other than the interest created by the terms and conditions of their contracts. See Article 64A, §§15A and 51B. Thus, they have no constitutional entitlement to a hearing prior to the employer's decision not to renew the contract. See Board of Regents v. Roth, 408 U.S. 564, 578 (1972) (teacher hired on year-to-year basis had no property interest in employment strong enough to require hearing on employer's decision not to rehire him).10

2. Probationary employees

All new employees in the classified service must serve a probationary period. COMAR 06.01.01.37A. During that period, the probationary employee may be rejected at any time, merely upon a written statement of the reasons for the rejection. Article 64A, §33(b)(1); COMAR 06.01.01.37F. The sufficiency of the reasons for rejection is not subject to challenge. COMAR 06.01.01.59. Thus, probationary employees may be dismissed for any nondiscriminatory reason. Small v. Secretary of Personnel, 267 Md. 532, 535 (1973). Consequently, probationary employees cannot be said to have a property interest in continued employment sufficient to necessitate pretermination hearings. See Loudermill, 470 U.S. at 541 (legislature need not create property interest in public employment).

Current regulations require a written statement of reasons for the rejection of a probationary employee and, ordinarily, two weeks' notice to the employee of the rejection. COMAR 06.01.01.37F. In addition, the employee has a right to appeal the rejection and to be given a hearing on that appeal. COMAR 06.01.01.37F and 06.01.01.59. The appeal and hearing procedures provided for probationary employees are generally more limited than those for classified employees. For example, under COMAR 06.01.01.59A, a new probationary employee may appeal his or her rejection only on the grounds that procedural requirements were not followed or that the rejection was for discriminatory or other unconstitutional reasons, while COMAR 06.01.01.61A imposes no limit on the grounds of a classified employee's appeal of the alleged cause for his or her removal. Nonetheless, in our opinion, these safeguards are adequate to protect the interest of probationary employees in their employment, in view of the limited nature of that interest. See 60 Opinions of the Attorney General 545, 548 (1975).

3. Unclassified employees

Most unclassified employees serve at the pleasure of their superiors. Patterson v. Ramsey, 413 F.Supp. 523 (D. Md. 1976).11 Accordingly, they may be removed without cause and, like probationary employees, have no such property interest in continued employment as necessitates pretermination hearings. 61 Opinions of the Attorney General 219, 227-28 (1976). Under current Department of Personnel regulations, unclassified employees have essentially the same rights as probationary employees to be given written notice of their termination, including the reason, "if any", therefor, and to appeal the legality of the termination. COMAR 06.01.01.60 and 06.01.01.62. Therefore, we believe that current procedures, although more limited than those for classified employees, afford unclassified employees, as well as probationary employees, "all the process that is due". Loudermill, 470 U.S. at 547.12

III
Conclusion

In summary, it is our opinion that neither Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) nor Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) requires any change in present Maryland personnel regulations or administrative procedures. At the same time, however, we believe that it would be advisable to amend the statutory provisions on overtime compensation for State employees, to ensure their continued administration in conformity with the federal Fair Labor Standards Act.

Stephen H. Sachs, Attorney General

1 This opinion addresses only practices relating to those employees who are covered by State personnel laws and Department of Personnel regulations and policies. It does not address whether local governments or State agencies outside the jurisdiction of the Department of Personnel are in compliance with the requirements of these cases.

2 The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people". The Commerce Clause, Article I §8, clause 3, empowers Congress to "regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes".

3 Special provisions govern overtime compensation of particular categories of employees whose work necessitates irregular or varying work schedules. See, e.g., 29 U.S.C. §207(k) (law enforcement and fire protection personnel).

4 The State Wage and Hour Law, codified at Article 100, §§81 through 93A, establishes minimum hourly wages for employees generally. See Article 100, §83. However, the State Wage and Hour Law is inapplicable to employees of the State, whose wages and hours are governed by the more specific provisions of Article 100, §§76 through 77A.

5 Article 100, §76(a)(3), which applies to departments or units that do not operate on a 5-day work schedule, was enacted by Chapter 233, Laws of Maryland 1985. Article 100, §26B(c), which applies to employees of the Maryland State Police who work a 10-hour workday, was amended by Chapter 531, Laws of Maryland 1985.

6 That provision was added by Chapter 679, Laws of Maryland 1985.

7 It is not clear whether the decision in Garcia will be applied retroactively. In determining whether a decision should be so applied, courts typically consider three factors: (1) whether the decision established a new principle of law, either by deciding an issue of first impression whose resolution was not clearly foreshadowed by earlier cases or, as in this case, by overruling clear past precedent on which litigants may have relied; (2) whether retrospective operation will further or retard the operation of the holding in question; and (3) whether retroactive application could produce substantial inequitable results in individual cases. Northern Pipeline Constr. v. Marathon Pipe Line Co., 458 U.S. 50, 88 (1982); Chevron Oil Company v. Hudson, 404 U.S. 97, 106-107 (1971). In our view, all three factors strongly favor non-retroactive application of the decision in Garcia. And the United States Department of Labor has recently announced that it will regard the decision as taking effect, prospectively, as of April 15, 1985.

8 "Permanent part-time employees" are those working "not less than 50% nor more than 80% of the normal work week". Article 64A, §51(a)(2). Employees who work more than 80% of the "normal work week", but less than fulltime, are treated as unclassified employees. The adequacy of termination procedures applicable to unclassified employees is discussed below, in the text accompanying notes 11 and 12.

9 Particular circumstances that constitute sufficient cause, as, for example, "[t]hat the employee is incompetent or inefficient in the performance of his duty", are enumerated in COMAR 06.01.01.47. However, that list is not exclusive. See COMAR 06.01.01.48A.

10 Employment contracts frequently provide for the contingency of termination before the end of the contractual term, at the will of the employing agency. A terminated contractual employee may, of course, pursue such common law or statutory causes of action as are available, if, for example, the employee believes that the discharge decision was discriminatory. But, we are aware of no case holding that an at-will contractual employee who does not have tenure rights must be afforded a pretermination hearing.

11 See, e.g., §6-105(a)(2) of the State Government Article: "Staff appointed under this subsection serves at the pleasure of the Attorney General." But see SG §2-1207(g), which provides that professional employees of the Department of Fiscal Services may be removed only for cause after notice and hearing. The Department has its own personnel procedures and, to our knowledge, is the only agency whose "unclassified employees" have statutorily conferred tenure rights. We will address those procedures in a forthcoming opinion.

12 Nothing in the Court's opinion in Loudermill suggests that affording these groups of employees limited due process protection in itself creates a property right in continued employment. To the contrary, the Court carefully noted that "[t]he categories of substance and procedure are distinct". 470 U.S. at 541.

Robert A. Zarnoch, Assistant Attorney General
Kathryn Rowe, Staff Attorney
Jack Schwartz
Chief Counsel
Opinions and Advice

May 20, 1985
The Honorable Harry Hughes
Governor of Maryland

Dear Governor Hughes:

We have reviewed and hereby approve for constitutionality and legal sufficiency Senate Bill 345, which relates to overtime payments for the Maryland State Police, and House Bill 1129, which relates to overtime compensation for the Natural Resources Police. While we approve the bills there is one point we wish to bring to your attention.

The recent decision of the Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, 105 S.Ct. 1005 (1985) overruled National League of Cities v. Usery, 426 U.S. 833 (1976) thus making most State employees, including law enforcement personnel, subject to the Fair Labor Standards Act (FLSA), 29 USC §201 et seq. Among the provisions newly applicable to State employees is 29 USC §207 which requires that an employee who works more than 40 hours in a week be paid for the hours over 40 at at least one and one-half times the regular rate.

Both bills involved here could be read to permit an employee to work over 40 hours in a week without receiving overtime pay as required by §207. Under Senate Bill 345 a civilian employee could work five 10-hour days in one week and three the next, without exceeding the 80-hour limit for two weeks. Under House Bill 1129, which calculates overtime by the day only, an employee could work six 8-hour days in a week and not receive overtime pay.

In our view, however, both bills may be administered so as to comply with the FLSA. Therefore, while we suggest that these provisions be amended next session to conform the law to the FLSA federal Act, we approve the bills for signing. And, if the bills are signed, they must be so administered.

Very truly yours,

Stephen H. Sachs, Attorney General