(May 2005)
GUIDELINES FOR POLICY
614.01: FAIR LABOR STANDARDS ACT COMPLIANCE
I.
Introduction
A.
On November 13, 1985, the Fair Labor Standards Amendments of 1985 were
enacted. These amendments changed certain provisions of the Fair Labor
Standards Act (FLSA) as they relate to employees of state and local governments,
most notably nonexcluded employees in education. After the decision by the
U. S. Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, et
al. (Garcia), 105 S.Ct. 1005 (1985) many state and local government employers
and representatives of their employees identified several areas in which they
believed they would be adversely affected by immediate application of FLSA.
This legislation responds to these concerns by amending certain FLSA provisions
with respect to employees of state and local governments. The effective date of
the amendments adopted on November 13, 1985, was April 15, 1986.
B.
These guidelines addressing the issue of overtime compensation only apply to
those employees who come under the overtime provisions of the Fair Labor
Standards Act (FLSA).
C.
For the purposes of these guidelines, the normal workweek constitutes the period
of time between 12:01 a.m. Sunday through 12:00 a.m. the following Sunday.
D.
For your convenience, relevant provisions of the United States Code and the Code
of Federal Regulations are cited following each of Parts I through X hereof.
(References: 29 USCA sec. 203, as amended; 29 USCA sec. 207, as amended, 29 USCA
sec. 213; 29 CFR 553.2-.3; 29 CFR 778.100: 29 CFR 778.105)
II.
Definition of Nonexempt Employee
Nonexempt employees are employees whose positions do not meet the FLSA tests for
exemption from the overtime provisions, and the employee must be compensated for
overtime. The FLSA includes provisions that are applicable to all employers employing
covered employees, including the requirements relating to the posting of notices, the
preservation and location of records, and the record keeping requirements for employers
of employees to whom both the minimum wage provisions or the minimum wage
provisions and the overtime pay provisions of the Act apply. Nonexempt employees
perform work, other than that performed by bona fide executive, administrative, or
professional employees (including academic administrative personnel) and the activities
directly and closely related to such work. Where it is more difficult to determine the
status of a particular employee, a careful analysis of the employee’s duties that are
directly and closely related to the work described as executive, administrative, or
professional will usually be necessary in arriving at a satisfactory determination of the
employee’s status. Job descriptions and employment conditions should be periodically
reviewed to ensure that the status of an employee is current with the provisions of the
Act.
(May 2005)
III.
When a Nonexempt employee may be Required to Work Overtime
A.
A nonexempt employee may, upon mutual agreement of the employee and
institution, work more than forty (40) hours during a workweek.
B.
A nonexempt employee may be required to work more than forty (40) hours in
any workweek if (a) the institution directs the employee to do so, and (b) an
"emergency condition" exists. For purposes of this procedure, an "emergency
condition" exists if in the opinion of the President one or more of the following is
present:
C.
1.
A situation which endangers or potentially will endanger the physical,
mental, or emotional health or safety of property for which the institution
is ultimately responsible, and the performance of overtime work would or
reasonably may be expected to contribute to the reduction of said danger
or perceived danger;
2.
A situation in which the performance of necessary overtime work will
increase the effectiveness of registration, enrollment, orientation,
graduation, or commencement activities, but under such circumstances
that a given employee shall not be required to work overtime unless the
institution has previously taken reasonable action to obtain the services of
all other qualified employees who were willing and able to voluntarily
perform services of the nature of the work required of the employee;
3.
A situation in which the performance of overtime work will or may
reasonably be expected to significantly contribute to the success of
institution goals or efforts to obtain institution or program accreditation
from recognized accreditation agencies or organizations, but under such
circumstances a given employee shall not be required to work overtime
unless the institution has previously taken reasonable action to have the
work performed during normal working hours and determined that
reasonably good planning would not have ensured the timely performance
of the work so as to avoid an "emergency" concerning accreditation; or
4.
A situation in which the performance of overtime work is reasonably
necessary in order for the institution to respond to the legal directives of
governmental agencies or bodies which are "external" to the State Board
of Education, Department of Postsecondary Education, or any System
institution; i.e., a situation where there is a need for assistance in retrieving
court-ordered documents.
As an alternative to requiring an employee to work more than forty (40) hours
during a workweek in which an emergency condition exists, the President or
his/her designee may adjust the schedule of one or more employees so as to
require such employee(s) to work a greater number of work hours than normal for
(May 2005)
one or more workdays and a lesser than normal number of work hours for one or
more other workdays during the workweek in which the emergency condition
exits.
(Reference: 29 USCA sec. 207 (a); 29 CFR 778.102)
IV.
Nonexempt Employees – Holidays and Weekends
A.
Any employee whose workweek does not ordinarily include a Sunday and who
works on a Sunday shall be compensated at the rate of one and one-half (1½ )
times his or her normal rate for each hour worked on the given Sunday. This rate
shall apply whether or not the workweek exceeds forty (40) hours.
B.
Any employee who works on a holiday on which the employee would ordinarily
be entitled to be off shall be compensated at the rate of two (2) times his or her
normal rate for each hour worked on the holiday. Provided that, if the employee
shall work the holiday and take off another day during the same workweek as an
alternative to taking the holiday off, then the employee shall be entitled to only
his or her normal rate of pay for all hours actually worked or taken as an
alternative holiday during the subject workweek. In a situation where an
employee is required by the respective institution to work on a holiday on which
the employee would ordinarily be entitled to be off, it shall be the discretion of the
employee to take an alternative day off during the same workweek, unless the
employee is disallowed by the employing institution to take an alternative holiday
due to an emergency condition as defined by Section II. hereof.
(References: 29 CFR 778.201; 29 CFR 778.203)
V.
Use of Compensatory Time Off
An employee who has earned compensatory time off and requests to use such time shall
be permitted to use such time within a “reasonable period” subsequent to the request if
the granting of such request does not “unduly disrupt” the operations of the institution.
Mere inconvenience is not considered to be unduly disruptive. However, a request to use
compensatory time at the beginning of an academic quarter or semester, or to use such
time during a period of final examinations or grades, may be unduly disruptive regardless
of when the request is made.
(Reference: 29 USCA sec. 207(o), as amended)
VI.
Employees Working Two or More Types of Jobs
A.
In a situation where an employee's normal employment involves two or more
different types of nonexempt work with the same institution, the hours worked in
both types of work shall count toward the determination of whether the employee
has worked more than forty (40) hours in any workweek.
(May 2005)
B.
In the event the different assignments are subject to different rates of pay, then the
rate of pay for those hours worked over forty (40) shall be calculated on the basis
of one and one-half (1½) times a “regular hourly rate” consisting of the weighted
average of the hourly rates for both (or all) types of work assignments, or, in the
alternative, the employee and the institution may agree in advance that any
overtime work shall be compensated on the basis of the one and one-half (1½)
times the appropriate rate for the type of work performed after the forty-hour
point is reached.
C.
The above provision shall not apply where an employee voluntarily chooses to
work, on an occasional, temporary, or sporadic basis, a job in addition to, and
different from, his or her normal work assignment. For example, if a bookkeeper
works forty hours in his or her regular job then voluntarily works an additional
fifteen hours during the same week painting the gymnasium, the fifteen hours
spent painting would not be considered overtime, and the employee would be
compensated at whatever rate is appropriate for that job. On the other hand, if a
secretary is called upon to work as part of a registration team in addition to her
normal forty hour workweek, that work assignment would be considered subject
to overtime, even though occasional, if it consisted of clerical activities. The
rationale for considering the secretary’s additional hours as overtime is that they
fail to pass the test with respect to being different in nature from the employee’s
normal duties, since both sets of activities would be clerical in nature.
(References: 29 CFR 778.115; 29 CFR 778.419)
VII.
Averaging Hours Prohibited
In computing hours worked, each workweek stands alone. Hours worked in two or more
workweeks may not be averaged for purposes of computing hours worked in a
workweek.
(Reference: 29 CFR 778.104-.105)
VIII.
Working Extra Hours in a Day
An employee is not necessarily entitled to overtime pay (that is, pay at one and one-half
times the normal rate), either in the form of pay or compensatory time off at one and onehalf times the normal rate of compensation, for hours worked in a day beyond those
normally worked in such day. However, under those circumstances described in this
procedure, a nonexempt employee may be entitled to overtime compensation for hours
worked during a workweek in excess of forty (40).
(Reference: 29 CFR 77.102)
IX.
Options for Compensation
A.
When a President or an authorized designee has determined that a need for
overtime work exists, he/she shall make a request to the respective employee or
employees to work overtime (for a given day or days or for the workweek).
(May 2005)
Before an employee shall agree to perform such overtime work, the
President/designee shall make the employee aware of which types of
compensation and/or alternative scheduling shall be available to the employee.
The employee shall make it known to the President/designee which of the options
presented by the President/designee the employee has selected regarding how
such overtime will be treated, and the employee’s selection shall be honored by
the respective institution. The options which are to be made available to the
employee shall be from among, but need not necessarily include all of, the three
options described below:
B.
1.
The employee will receive compensatory time at one and one-half (1 ½)
times the rate of actual overtime hours worked for the workweek. For
example: if an employee works four (4) hours of overtime, the employee
will receive six (6) hours of compensatory time which can be used at
employee's discretion. (See also, use of compensatory time off.)
2.
The employee will receive overtime pay at one and one-half (1 ½) times
the employee’s normal hourly rate for each hour of over time work
performed for the workweek. For example: if an employee's normal
hourly rate computes to $5.00 per hour, the employee will receive $7.50
for each hour of overtime work performed.
3.
If an employee works hours beyond the normal number of hours for a
given workday or workdays, the employee may choose to decrease the
number of hours worked in another workday or workdays in that same
workweek on an hour-for-hour basis, so long as such reduction does not
cause an undue disruption to the normal operation of the institution and so
long as the total number of hours worked during the week is not less than
that which would have ordinarily been worked by the employee during a
workweek. The employee shall nevertheless be entitled appropriate
overtime compensation in the event that the total number of work hours
for the workweek exceeds forty (40).
However, except in emergency conditions, as defined in Section II hereof, the
President/designee cannot require the employee to adjust his or her work schedule
so as to use such additional work hours during the same workweek as the
overtime work is performed. This option shall be at the sole discretion of the
employee, subject to the exceptions stated above. No employee shall ever be
compelled or forced to adjust his or her work schedule as described above except
during an emergency condition as described in Section II hereof.
(References: 29 USCA sec. 207(o); 29 CFR 778.100; 29 CFR 778.113)
X.
Leave and Holidays
Paid time off attributable to a holiday, or to sick, annual, personal leave, or other forms of
paid leave is to be treated the same with respect to computing the total number of hours
(May 2005)
worked during a workweek. Hours taken off for a holiday or as sick, annual, personal, or
other paid leave will be counted as hours worked in determining whether or not forty (40)
work hours were exceeded during a given workweek.
XI.
Compensatory Time Off
A.
If an employee receives entitlement to compensatory time off in lieu of overtime
pay in cash, the employee shall be permitted to use accrued compensatory time
within a reasonable period after it is requested if to do so would not unduly
disrupt the operations of the employing institution.
B.
The maximum compensatory time which may be accrued by an affected
employee shall be 240 hours (160 hours actually worked). An employee shall be
paid overtime compensation in cash for additional overtime hours of work.
C.
Payment for accrued compensatory time upon termination of employment shall be
calculated at the average regular rate of pay for the final three (3) years of
employment, or the final regular rate received by the employee, whichever is
higher.
(Reference: 29 USCA sec. 207(o))
XII.
Lectures, Meetings, and Training Programs
The following is excerpted from 29 CFR 785 of the Federal regulations adopted to carry
out the FLSA.
785.27 General.
Attendance at lectures, meetings, training programs, and similar activities need
not be counted as working time if the following four criteria are met:
(a)
Attendance is outside of the employee’s regular working hours;
(b)
Attendance is in fact voluntary;
(c)
The course, lecture, or meeting is not directly related to the employee’s
job, and;
(d)
The employee does not perform any productive work during such
attendance.
785.28 Involuntary attendance.
Attendance is not voluntary, of course, if it is required by the employer. It is not
voluntary in fact if the employee is given to understand or led to believe that his
present working conditions or the continuance of his employment would be
adversely affected by nonattendance.
(May 2005)
785.29 Training directly related to employee’s job.
The training is directly related to the employee’s job if it is designed to make the
employee handle his job more effectively as distinguished from training him for
another job, or to a new or additional skill. For example, a stenographer who is
given a course in stenography is engaged in an activity to make her a better
stenographer.
Time spent in such a course given by the employer or under his auspices is hours
worked. However, if the stenographer takes a course in bookkeeping, it may not
be directly related to her job. Thus, the time she spends voluntarily in taking such
a bookkeeping course, outside of regular working hours, need not be counted as
working time. Where a training courses is instituted for the bona fide purpose of
preparing for advancement through upgrading the employee to a higher skill, and
is not intended to make the employee more efficient in his present job, the
training is not considered directly related to the employee’s job even though the
course incidentally improves his skill in doing his regular work.
785.30 Independent training.
Of course, if an employee on his own initiative attends an independent school,
college or independent trade school after hours, the time is not hours worked for
his employer even if the courses are related to his job.
785.31 Special situations.
There are some special situations where the time spent in attending lectures,
training sessions and courses of instruction is not regarded as hours worked. For
example, an employer may establish for the benefit of his employees a program of
instruction which corresponds to courses offered by independent bona fide
institutions of learning. Voluntary attendance by an employee at such courses
outside of working hours would not be hours worked even if they are directly
related to his job, or paid for by the employer.
XIII.
Travel Time
The following is excerpted from 29 CFR 785 of the Federal regulations adopted to carry
out the FLSA.
785.35 Home to work; ordinary situation.
An employee who travels from home before his regular workday and returns to
his home at the end of the workday is engaged in ordinary home to work travel
which is a normal incident of employment. This is true whether he works at a
fixed location or at different job sites. Normal travel from home to work is not
work time.
(May 2005)
785.36 Home to work in emergency situations.
There may be instances when travel from home to work is overtime. For
example, if an employee who has gone home after completing his day’s work is
subsequently called out at night to travel a substantial distance to perform an
emergency job for one of his employer’s customers, all time spent on such travel
is working time. The Divisions are taking no position on whether travel to the job
and back home by an employee who receives an emergency call outside of his
regular hours to report back to his regular place of business to do a job is working
time.
785.37 Home to work on special one-day assignment in another city.
A problem arises when an employee who regularly works at a fixed location in
one city is given a special one-day work assignment in another city. For example,
an employee who works in Washington, D.C., with regular working hours from 9
a.m. to 5 p.m. may be given a special assignment in New York City, with
instructions to leave Washington at 8 a.m. He arrives in New York at 12 noon,
ready for work. The special assignment is completed at 3 p.m., and the employee
arrives back in Washington at 7 p.m. Such travel cannot be regarded as ordinary
home-to-work travel occasioned merely by the fact of employment. It was
performed for the employer’s benefit and at his special request to meet the needs
of the particular and unusual assignment. It would thus qualify as an integral part
of the “principal” activity which the employee was hired to perform on the
workday in question; it is like travel involved in an emergency call (described in
Section 785.36), or like travel that is all in the day's work (see Section 785.38).
All the time involved, however, need not be counted. Since, except for the special
assignment, the employee would have had to report to his regular work site, the
travel between his home and the railroad depot may be deducted, it being in the
“home-to-work” category. Also, of course, the usual meal time would be
deductible.
785.38 Travel that is all in the day's work.
Time spent by an employee in travel as part of his principal activity, such as travel
job site to job site during the workday, must be counted as hours worked. Where
an employee is required to report at a meeting place to receive instructions or to
perform other work there, or to pick up and to carry tools, the travel from the
designated place to the work place is part of the day’s work, and must be counted
as hours worked regardless of contract, custom, or practice. If an employee
normally finishes his work on the premises at 5 p.m. and is sent to another job
which he finishes at 8 p.m. and is required to return to his employer’s premises
arriving at 9 p.m., all of the time is working time. However, if the employee goes
home instead of returning to his employer’s premises, the travel after 8 p.m. is
home-to-work travel and is not hours worked. (Walling v. Mid-Continent Pipe
Line Co., 143 F. 2d 308 (C.A. 10, 1944))
(May 2005)
785.39 Travel away from home community.
Travel that keeps an employee away from home overnight is travel away from
home. Travel away from home is clearly worktime when it cuts across the
employee’s workday. The employee is simply substituting travel for other duties.
The time is not only hours worked on regular working days during normal
working hours but also during corresponding hours on nonworking days. Thus, if
an employee regularly works from 9 a.m. to 5 p.m. from Monday through Friday,
the travel time during these hours is worktime on Saturday and Sunday as well as
on the other days. Regular meal period time is not counted. As an enforcement
policy the Divisions will not consider as worktime that time spent in travel away
from home outside of regular working hours as a passenger on an airplane, train,
boat, bus, or automobile.
785.40 When private automobile is used in travel away from home community.
If an employee is offered public transportation but requests permission to drive
his car instead, the employer may count as hours worked either the time spent
driving the car or the time he would have had to count as hours worked during
working hours if the employee had used the public conveyance.
785.41 Work performed while traveling.
Any work which an employee is required to perform while traveling must, of
course, be counted as hours worked. An employee who drives a truck, bus,
automobile, boat, or airplane, or an employee who is required to ride therein as an
assistant or helper, is working while riding, except during bona fide meal periods
or when he is permitted to sleep in adequate facilities furnished by the employer.
XIV. Time Sheet
A time sheet shall be completed for all nonexempt employees, to record hours worked,
sick leave, annual leave, personal days, and holiday time. Each institution shall be
responsible for developing its own system for the management of this process. Time
sheets may be maintained manually or through the utilization of a computerized system.
A time sheet shall be completed by the employee and submitted to the immediate
supervisor for approval. The supervisor shall be responsible for the review of the hours
reported on the time sheet. It shall be the responsibility of the employee’s supervisor to
monitor the work hours. If approved, the time sheet shall be submitted to the appropriate
department for payroll purposes. The completed and approved Time sheets shall be
retained in accordance with applicable state and federal regulations.