Fair Labor Standards Act (FLSA)
| No. 3-2a | Rev. 11-1-16 | 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)
29 U.S.C. § 8, Fair Labor Standards Act
Utah Code. Ann. § 34-49-101, et.seq
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, 91¶ÌÊÓƵ 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 91¶ÌÊÓƵ. 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. 91¶ÌÊÓƵ non-exempt employees are designated as not exempt from the FLSA 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. 91¶ÌÊÓƵ non-exempt employees are entitled to a minimum wage as set forth by state and federal law.
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 benefits granted to exempt employees. However, they are subject to the overtime and compensatory time regulations of FLSA, as explained in A.1-5 above.
C. Exempt Positions
1. Exempt employees, including Academic Admin personnel, 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.
D. Working Hours (Non-Teaching Personnel)
1. An eight-hour workday and 40-hour workweek are standard for non-exempt and admin 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 and admin 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 and Admin 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 and admin non-exempt employees are not authorized to work overtime without the prior approval of the immediate supervisor. Non-exempt and admin 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 or admin 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 Hourly Students, Non-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 employees under the age of 18 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 hourly employees 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 and non-students shall not work more than 59 hours per pay period. NOTE: International and Federal Work Study students are limited to 20 or fewer hours per week.
G. On-Call Time for Non-Exempt and Admin 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 and Admin 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.
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 and Admin Non-Exempt Employees
1. Non-exempt and admin non-exempt employees who work through their meal period must be compensated when the supervisor knew or should have known that the employee was working during that time. Working through a meal period includes an employee who is required to stay at his or her workstation to occasionally answer the phone or perform other work during the meal break. Employees who work through lunch without approval may be subject to disciplinary action.
J. Technology for Non-Exempt Employees
1. Non-exempt and admin 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 and Admin Non-Exempt Employees
1. FLSA states that non-exempt and admin 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 and admin 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 and admin non-exempt employees must use the University’s record keeping system (or another 91¶ÌÊÓƵ Human Resources/Payroll Office approved record keeping system) to record number of hours worked. Non-exempt and admin 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. Support for Breastfeeding Mothers
91¶ÌÊÓƵ supports breastfeeding mothers through provision of appropriate break times, spaces for lactation, and breast milk storage, as further described herein.
1. Break Time
a. Each time the employee has need to breastfeed or express milk while at work, the employee shall be provided a reasonable amount of break time for at least one year following the child’s birth.
b. Employees shall use usual break and meal periods for expressing milk, when possible. If additional time is needed beyond the provided breaks, employees may use personal or vacation leave or make up the time as negotiated with their supervisors.
2. Lactation Area
a. Employees shall be provided an area, other than a restroom, to breastfeed or express milk. The area shall be in close proximity to the employee's work area.
b. The area provided shall:
1. be maintained in a clean and sanitary condition;
2. provide privacy shielded from the view of and intrusion from coworkers or the public;
3. be available at the times, and for the duration required by the employee as determined in consultation with the supervisor;
4. have an electrical outlet.
3. Employees shall be provided access to a clean and well-maintained refrigerator or freezer for the temporary storage of the employee's breast milk. Where the employee is not working in an office building, employees may be provided a nonelectric insulated container for storage of breastmilk.
4. Employees and supervisors have a mutual obligation to consult regarding employee needs reasonably in advance, preferably prior to the employee's return to work, so that frequency and duration of breaks, schedules, suitable lactation areas, and breast milk storage may be arranged.
5. An employee may not be discriminated against because the employee breastfeeds or expresses milk in the workplace. See PPM 3-32. Discrimination and Harassment.