A. The Office of
Human Resources (OHR) develops an overtime model policy to assist an agency in
its policy development. The Office of Human Resources must review and approve
each agency's overtime policy.
B.
Each agency shall develop an overtime policy and establish procedures that will
ensure compliance with federal and state laws, including the Fair Labor
Standards Act (FLSA).
C. By
interpretation of the United States Department of Labor, the State is
considered to be one employer for the purposes of applying FLSA.
D. For overtime purposes the two categories
of employees are: (a) nonexempt (overtime provisions of FLSA do apply) and (b)
exempt (overtime provisions of FLSA do not apply). The exempt or nonexempt
status of any employee must be determined by the agency based on the provisions
of FLSA. It is the responsibility of the agency head or his designee to
determine whether an exemption is applicable to a particular
employee.
E. Workweek is seven
consecutive 24-hour periods, i.e., 168 consecutive hours designated by the
employing agency.
Exception--In the case of law enforcement personnel or fire
protection and emergency medical personnel, these categories of employees have
work schedules up to 28 consecutive 24-hour periods, i.e., 672 consecutive
hours designated by the employing agency.
F. Hours worked are all hours that an
employee is permitted to work for the employing agency. Hours worked include
time during which an employee is necessarily required to be on the employing
agency's premises, on duty, or at a prescribed work place. Hours worked do not
include leave with or without pay or holidays when an employee does not
actually work.
G. Overtime is
actual hours worked in excess of 40 hours in a given seven consecutive day
period as determined by the employing agency. The Fair Labor Standards Act
contains special provisions for determining when overtime is earned by
employees in certain job categories. These categories include:
1. Fire protection and emergency medical
personnel;
2. Law enforcement
(including security personnel in correctional institutions);
3. Hospitals or institutions primarily
engaged in the care of the sick, the aged, the mentally ill, or the disabled
that reside on the premises; and
4.
Employees who are compensated for overtime using the fluctuating workweek
method of payment for overtime as defined by FLSA which must be approved by OHR
prior to implementation.
H. Generally a nonexempt employee should not
incur overtime; however, overtime may be permitted when authorized by the
agency.
I. Compensatory time is an
acceptable alternative to overtime compensation for employees.
1. Upon separation from employment, nonexempt
employees shall be paid for unused compensatory time, and exempt employees
shall not be paid for unused compensatory time.
2. Upon separation from employment, nonexempt
employees shall be paid for unused compensatory time at a rate of compensation
not less than the higher of:
a. The average
regular rate received by such employee during the last three years of the
employee's employment; or
b. The
final regular rate received by such employee.
J. Nonexempt Employee Procedures
1. Payment for Overtime
Nonexempt employees shall either be paid or given
compensatory time for hours worked in excess of 40 hours in a given work period
of seven consecutive days. For hours worked in excess of 40 in an established
workweek of seven consecutive days, payment for overtime or the accrual of
compensatory time shall be at the rate of time and one-half the employee's
regular rate, computed on the basis of a 40-hour workweek. (Refer to Exceptions
in Regulation Regulation 19-707.02 G.)
2. Compensatory Time
a. A nonexempt employee engaged in public
safety work, emergency response work, or seasonal work may not accumulate more
than 480 hours of compensatory time. Any employee who has accumulated 480 hours
of compensatory time shall be paid overtime for additional hours of
work.
b. A nonexempt employee
engaged in work other than public safety work, emergency response work, or
seasonal work, may not accumulate more than 240 hours of compensatory time. Any
employee who has accumulated 240 hours of compensatory time shall be paid
overtime for additional hours of work.
3. Recordkeeping for Nonexempt Employees
Each agency must maintain the following information for
nonexempt employees.
a.
Name;
b. Home address;
c. Date of birth if under 19 years of
age;
d. Gender and
occupation;
e. Employee workweek,
including time of day and day of week on which the employee's workweek
begins;
f. Regular hourly rate of
pay for any week when overtime is worked and overtime pay is due;
g. Hours worked each workday and total hours
worked each week;
h. Total daily or
weekly straight-time wages for all hours worked;
i. Total overtime excess compensation for the
workweek;
j. Total additions or
deductions from wages each pay period;
k. Total wages paid each pay
period;
l. Date of payment and pay
period covered;
m. The number of
hours of compensatory time earned each workweek, or other applicable work
period, by each employee at the rate of 1 1/2 hours for each overtime hour
worked;
n. The number of hours of
such compensatory time used each workweek or other applicable work period by
each employee; and
o. The number of
hours of compensatory time compensated in cash, the total amount paid, and the
date of such payment.
K. Exempt Employee Procedures
1. No Payment for Overtime
Exempt employees shall not be paid overtime
2. Compensatory Time
If allowed by an agency's overtime policy, exempt employees
may receive compensatory time for hours worked in excess of 40 in the workweek.
If granted, compensatory time must not be at a rate greater than one hour of
compensatory time for each hour worked in excess of 40 in the workweek.
L. Employment at More
Than One State Agency
When a nonexempt employee is employed at more than one State
agency, each employing agency shall calculate separately the hours worked by
the employee. By interpretation of the United States Department of Labor, the
State is considered to be one employer for the purpose of applying FLSA;
therefore, the agencies where the individual is employed should jointly
determine whether such a nonexempt employee is owed any overtime compensation
during a workweek. (For information on dual employment, refer to Regulation
19-713.)
M. Volunteers
Time spent as a volunteer is not included in hours worked. An
employee may volunteer services for an agency or a political subdivision of the
State, if a) the individual does not receive compensation, paid expenses,
benefits, or a nominal fee for services for which the individual volunteered,
and b) such services are not the same type of services which the individual is
employed to perform for such public agency. An employee of a public agency
which is a state, political subdivision of a state, or an interstate
governmental agency may volunteer services for any other state, political
subdivision, or interstate governmental agency including a state, political
subdivision or interstate governmental agency with which the employing agency
has a mutual aid agreement.