WASHINGTON DC — The U.S. Office of Personnel Management (OPM) is advising agencies to use their discretion when deciding whether to adhere to the federal or state and local minimum wage for its employees.
In response to an increasing number of state and local governments establishing or increasing a jurisdictional minimum wage higher than the nationwide federal minimum established under the Fair Labor Standards Act (FLSA), OPM is issuing guidance to agencies.
According to the agency’s statement, “Federal employees are covered by the FLSA, which is federal law, and it includes minimum wage provisions. The FLSA minimum wage supercedes any higher wage established by state or local governments.”
Federal agencies are not required to adhere to state and local government minimum wage laws under the preemption doctrine based on the Supremacy Clause of the Constitution.
In terms of a fixed federal pay system like the GS pay scale, changing a minimum wage to reflect state or local rate would be more difficult.
According to the memo issued by OPM, “In the case of a Federal employee pay system such as the GS pay system in which pay rates are fixed by statute, a statutory change would be needed to allow payment of a State or local minimum wage. There is no administrative authority under which OPM could allow State or local minimum wages to supersede GS statutory rates.”