Fair Labor Standards Act (FSLA)

No. 3-2a Rev. 12-14-10 Date 4-20-83

 

Name changed from Professional Non Exempt to Fair Labor Standards Act 12/14/2010

I. REFERENCES

PPM 3-2, Employee Definitions
PPM 3-33, Discipline (Staff Employees)
Fair Labor Standards Act

II. DEFINITIONS

A.  Compensatory Time - The practice of giving employees paid time off that may be used in the future in lieu of paying them overtime for hours worked in excess of 40 per week.  Compensatory time shall be accumulated at the rate of one and one-half times the overtime hours worked.

B.  Full Time Equivalency (FTE) – The number of total hours worked divided by the maximum number of compensable hours in a work year.  For example, WSU defines the work year as 2,080 hours.  An employee occupying a paid full-time job all year would be 1.0 FTE, and an employee working 1,040 hours would be .5 FTE.

C.  De Minimis – Insubstantial or insignificant periods of time, such as a few seconds or minutes, outside the scheduled working hours that cannot practically be precisely recorded.

III. PURPOSE

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments.  The following policy was developed to ensure compliance with FLSA for employees at Weber State University.  All employees of the University are covered by FLSA, although some individuals may be exempt from certain provisions.

IV. POLICY

A.  Non-Exempt Positions

1.  WSU non-exempt employees are designated as non-exempt and must be paid for all hours worked in a workweek.  In general, “hours worked” includes all time during which an employee is engaged in physical or mental exertion controlled or required by the employer and pursued necessarily and primarily for the benefit of the University and its business.  Also included is any additional time the employee is allowed (i.e., suffered or permitted) to work

2.  WSU non-exempt employees are entitled to a minimum wage as set forth by state and federal law (http://www.dol.gov/WHD/minimumwage.htm).

3.  Non-exempt employees must be compensated under the overtime provisions of FLSA for all hours worked in excess of 40 in a workweek at a rate of one and one-half times their regular rate of pay.

4.  Overtime must be paid, or compensatory time must be granted, to all non-exempt employees who work more than 40 hours in the workweek in one position or as a result of combining more than one non-exempt position, unless an exception is granted under FLSA.

5.  “Hours worked” includes only hours actually worked and does not include state holidays, inclement weather days, or when the employee has taken paid leave.

6.  All hourly employees are considered non-exempt.

B.  Admin Non-Exempt Positions

1.  In some cases, the University may view a position as being exempt in nature even though it does not qualify as such under FLSA.  In such cases, the University, after appropriate analysis and upon the recommendation of the assistant vice president of human resources, will designate the position as admin non-exempt.

2.  Admin non-exempt employees receive the same status, privileges, and benefits granted to exempt employees.  They will follow the same guidelines with the following exceptions:

a.  Admin non-exempt employees are subject to the overtime and compensatory time regulations of FLSA.

b.  Supervisors of admin non-exempt employees may take into account the amount of overtime allowed when considering granting additional pay opportunities such as external consulting.  External consulting time does not count as time worked for the University when computing overtime eligibility. 

c.  Admin non-exempt employees may not work more than 40 hours per week without prior approval of the immediate supervisor.

C.  Exempt Positions

1.  Exempt employees are excused from the minimum wage and overtime requirements of FLSA.

2.  Human Resources shall evaluate each job and determine which jobs satisfy FLSA exemption tests.  Exemption status shall be determined based on each job’s duties and responsibilities (http://www.dol.gov/whd/regs/compliance/fairpay/fs17a_overview.htm).

D.  Working Hours (Non-Teaching Personnel)

1.  An eight-hour day and 40-hour week are standard for non-exempt personnel. Office hours and working schedules are designated by University supervisors.

2.  The workweek is defined as the period between Saturday morning at 12:01 a.m. and the following Friday evening at midnight.

3.  Working hours for non-exempt personnel normally extend from 7:30 a.m. to 4:30 p.m. or other similar periods of time during the work day with a one-hour unpaid lunch period.  Work hours are subject to change at any time to comply with University needs and State of Utah regulations.

4.  A rest period of not more than 15 minutes will normally be provided during each half of an eight-hour shift.  The rest period shall not be taken at the beginning or end of a work period, and time which is not used for rest periods shall not be accumulated and used at a later date.

E.  Overtime/Compensatory Time for Non-Exempt Employees

1.  A department may require employees to work overtime; however, department heads and supervisors shall schedule their departmental workloads to preclude the need for overtime unless absolutely necessary.  Non-exempt employees are not authorized to work overtime without the prior approval of the immediate supervisor. Non-exempt employees who work overtime without approval must be compensated for time worked and may be subject to disciplinary action.

2.  Authorization for payment of overtime requires approval from the supervisor and next-level approver as designated by the division vice president or provost.  The division vice president or provost will monitor overtime through a monthly report generated by Human Resources.

3.  Daily hours may be varied within a workweek to accomplish necessary workloads and to limit or eliminate the necessity for overtime, but supervisors shall also exercise care that extended work schedules do not result in fatigue-related safety problems.

4.  If an employee who is less than 1.0 FTE works more than the required hours in a work week, straight time (hour-for-hour compensation), rather than overtime, will be provided when no more than 40 hours are worked.

5.  Generally, compensatory time is given to employees in lieu of paid time for hours worked exceeding 40 hours in a workweek, unless an employee makes a request to the University and a written agreement is entered into for payment of overtime prior to the performance of work.  However, compensatory time is not an option when the total compensatory time accumulated by a non-exempt employee reaches 90 hours (60 hours of overtime multiplied by 1.5).  Overtime worked above 90 hours necessitates payment. 

6.  Supervisors must allow the use of compensatory time within a reasonable time of a request for use unless the requested time will unduly disrupt the department’s operations.  Supervisors may require the use of compensatory time at any time.

7.  At termination or upon transfer to another department, payment for unused compensatory time will be included in the last pay check.

8.  All paid overtime will be charged to the department’s hourly wage budget.

 F.  Employment of Students and Youth

1.  Departments are encouraged to arrange their employment practices to accommodate maximum student utilization.

2.  Under no exception may a person employed be under the age of 16.

3.  No individual under the age of 18 may be employed in a hazardous job involving the use of machinery or vehicles.

4.  Every effort should be made to avoid the placement of student employees in hazardous situations. Oversight of working conditions and practices by the supervisor is required for maximum safety.

5.  It will be the responsibility of the individual employing the student to control the number of hours of employment in accordance with this policy. The University recommends students work no more than 25 hours per week. Students shall not work more than 40 hours per week. NOTE: International and Federal Work Study students may be limited to 20 or fewer hours per week.

G.  On-Call Time for Non-Exempt Employees

1.  On-call time policies will be developed and maintained at the department level and must be reviewed and approved by Human Resources for consistency with this policy and FLSA. 

H.  Travel Time for Non-Exempt Employees

1.  The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved (http://www.dol.gov/whd/regs/compliance/whdfs22.htm).

2.  Day Travel - An employee who regularly works at a fixed location is given a special one-day assignment in another location and returns home the same day. The time spent in traveling to and returning from the other location is work time, except that the employer may deduct or not count that time the employee would normally spend commuting to the regular work site.  Time spent by an employee in travel as part of his or her principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

3.  Overnight Travel - Travel that keeps an employee away from home overnight is travel away from home. Travel away from home must be paid as work time when the employee is traveling during the employee's normal working hours, even when the travel occurs on days an employee would not normally be working, such as Saturday or Sunday.  Hours spent traveling that are outside the employee’s normal working hours are not compensable unless the employee is required to drive a vehicle.  An employee who is a passenger traveling outside the employee’s normal working hours is not paid for those hours.  Time spent at a hotel with freedom to use time for employee’s own purposes is not compensable.  Any work which an employee is required to perform while traveling must be counted as hours worked, regardless of the timing of the hours. 

I.  Meal Breaks for Non-Exempt Employees 

1.  Non-exempt employees who work through their meal period must be compensated.

2.  Meal period time cannot be excluded from time worked for an employee who stays at her or his workstation and occasionally answers the phone during the meal break or who, without approval of the supervisor, takes it upon himself or herself to work through the lunch hour.

3.  Employees who work through lunch without approval must be compensated for time worked and may be subject to disciplinary action.

J.  Technology for Non-Exempt Employees

1.  Non-exempt employees must be compensated for all work-related activities whether they occur at work, at home, or via channels of communication like the internet, cell phone, or text messaging unless such time is de minimis.

2.  Employees who work at home or through diverse channels of communication without approval may be subject to disciplinary action.

K.  Volunteering of Non-Exempt Employees 

1.  FLSA states that non-exempt employees must be compensated for all hours they are required or permitted to work. Thus, even though employees volunteer to work beyond their normally scheduled hours, the department must compensate employees for those hours worked.

2.  An individual is considered to be a volunteer only if the following conditions are met:

a.  Services are performed for which no compensation is received beyond expenses or a nominal fee;

b.  And services rendered are not the same type services that the individual is employed to perform for the University.

Example: A custodial employee may volunteer to work as a ticket taker at a fund-raising event for the University. The individual is not considered an employee while volunteering.

L.  Lectures, Seminars, Training Courses, and Classes for Non-Exempt Employees 

1.  Time which non-exempt employees spend in meetings, lectures, or training is considered hours worked and must be paid unless

a.  Attendance is outside regular working hours; and

b.  Attendance is voluntary; and

c.  The course, lecture, or meeting is not job related; and

d.  The employee does not perform any productive work during attendance. 

2.  Attendance is not voluntary if management requires it or if the employee is led to believe that his or her present working conditions or continued employment would be adversely affected by not attending. Such attendance is considered hours worked.

3.  In general, for-credit courses taken under the University’s tuition waiver program are not counted as hours worked. 

M.  Record Keeping

1.  FLSA requires employers to keep records on hours worked, specifically:

a.  Total hours worked each workday and each workweek;

b.  Total daily or weekly straight-time earnings;

c.  Regular hourly pay rate for any week when overtime is worked;

d.  Total overtime pay for the workweek.

2.  All non-exempt employees must use the University’s record keeping system (or another WSU Human Resources/Payroll Office approved record keeping system) to record number of hours worked.  Non-exempt employees should record the number of hours worked each day.  Hours worked must be submitted weekly by the employee and approved weekly by the supervisor. 

N.  Required Breaks for Nursing Mothers

1.  The Patient Protection and Affordable Care Act of 2010 requires employers to provide a nursing mother with reasonable break time for up to one year after her child’s birth so the mother may express milk.

2.  Employers must also provide a private area, other than a restroom, for the nursing mother to express milk.

3.  The mother will continue to be expected to perform her normal job duties and will not receive additional pay for break times. 

4.  Nursing mothers may request breaks and space to express milk through their immediate supervisor. Employees are encouraged to discuss their needs with their supervisor well in advance so that a suitable private area may be identified.


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