FLSA

For Staff

Items covered in

this training

About Fair Labor Standard Act (FLSA)

Paid Time & Overtime UNM Policy Bargaining Unit Contracts

Compensatory Time

Shift Differential

Volunteers, Employees, and Independent Contractors

By the end of this training...

• Understand important components of the FLSA• Understand why/how you are paid based on

your employee classification• Know how policies and applicable collective

bargaining agreements relate to how you are paid

• Know why there is a process for determining when and how you can volunteer or work as a contractor

What applies to UNM?

• 1. State and Federal laws and regulations• 2. Bargaining Unit Contracts• 3. UNM Policies and Procedures

What applies to UNM? (continued)

• Both #2 and # 3 will always be as great, if not greater, than the requirements of the law. When you are unsure of the answer, check the contract first if you are a bargaining unit employee. If you can’t find anything in the contract, then refer to the Policy Manual.

• Don’t forget to use your Human Resources Consultant as a resource.

Fair Labor Standards Act (FLSA)What is it?Established in 1938 to protect employee wages.

Establishes basic requirements:

•Payment of the minimum wage;

•Overtime pay for time worked over 40 hours in a work week for certain jobs;

Overtime payment = 1.5 times “regular rate”

Regular rate includes shift differentials, bonuses, and other compensation

•Restrictions on the employment of children;

•Record keeping requirements

FLSA classifies employees in two categories: Exempt & Non-Exempt

Exempt Employees (exempt from FLSA) are paid for the job, regardless of the hours required to get it done. Exempt roles fall into the following categories: Executive (Roles that manage all aspects of an integrated

operational entity, including fiscal management and staffing) Administrative (Non-executive roles that require a high level of

discretion and judgment, and have broad decision making impact) Professional (Highly specialized/technical roles, such as engineers,

scientists, accountants, artists, etc., requiring highly developed skills gained through prolonged courses of intellectual study)

Outside Sales (Roles typically defined as sales representatives) Computer Analysis and Engineering (Technical roles operating

at a level that requires a high degree of professional skill).

Non-exempt Employees

• Non-exempt Employees are accountable and paid for each and every hour worked. The employer is required to compensate the individual at a rate of time and ½ for any hours worked over 40 hours in a given work week.

• The work week is the 7 day period designated by the employer. For UNM this period is from 12:01 a.m. Saturday to midnight the following Friday.

Changes to Act (April 20, 2004)

• Set new ruling establishing that a role may be exempt if true management is the primary function.

• Increased to $455 the minimum weekly salary amount required for exempt status

Changes to Act (continued)

• If an employee in an otherwise “exempt” position earns less than $455 per week ($23,660 per year), then that employee will lose exempt status and must fall under the provisions of the FLSA.

• This is true even if the employee is part time and his/her full-time equivalent pay rate is more than the $455/week ($23,660 pa) FLSA minimum.

UNM Policy 3305Overtime (OT):• Supervisors arrange workloads and work

schedules so that an employee can complete his/her duties and responsibilities in a 40 hour workweek. However, supervisors may require employees to work overtime.

• Authorization is required from the supervisor before OT is worked

UNM Policy 3305 (continued) If the employee works unauthorized overtime, the

University will still make payment of OT in accordance with FLSA.

However, disciplinary action may be taken against the individual for creating this liability without obtaining prior supervisory approval.

How is overtime allotted?• Non-union: Management discretion

• CWA (see Article 8)– Staff are offered overtime within their job title and work

unit (as defined by management) first on the basis of seniority and then on the basis of the least number of OT hours credited to each employee.

– The most readily available employee may be utilized for emergency overtime. Emergency overtime is not counted on the list of overtime worked.

Overtime Allotment Cont.

• USUNM (see article 12 section H)– Assigned on a rotating basis within the job

classification needed, taking into consideration the needs of the work unit

– The rotation of overtime will be offered based on the least number of overtime hours worked and offered to an employee.

Union Contracts• In addition:

• CWA (see article 8 section 2.1)– Time and a half for hours are paid in excess of 10 consecutive

hours– When an employee is called back to work after having

completed his/her normal workday he/she is paid a minimum 2 hours pay at time and a half.

– Overtime records

• Managers will keep records that show the number of overtime hours worked and offered (the latter count as though the employee had worked the time)

What are considered hours worked?

Waiting time/On-call (engaged to wait) (See contract and Policy 3500, Wage and Salary Administration, for parameters)

•An employee selected to be on-call for a particular period will generally need to:

 

Be available by phone or;

Be able to return a page within 15 minutes; and

Be able to report to work within a period of 30 minutes to possibly 1 hour

• Since the intent is that an individual who is on-call needs to be able to report to work if called, the designated on-call employee must not be impaired at the time he/she is called to report. Therefore, the employee may not consume alcoholic beverages or any other substance that could potentially impair his/her ability to drive or do work during the hours he/she is on on-call status.

• Carrying a beeper or leaving a phone number where one can be reached usually does not require compensation unless the conditions listed above are also met.

• There are some cases, though, where the frequency of calls are of such a nature that the individual must be compensated for on-call payment. In any event, the non-exempt employee should be paid for the time spent on the phone. Many departments use exempt employees in this role instead.

• Please contact your HR Consultant for more information.

• If a non-exempt individual is used, the employee will be told specifically that he or she is in an on-call status for a particular timeframe, that he/she must meet the requirements, and will be compensated accordingly.

Hours Worked Cont.

• Time required to change into or out of uniforms or other required activities (prep work/close out procedures) before or after work period

• Traveling from worksite to worksite• Personal visits to other UNM Departments.

Employees must arrange visits so as not to interrupt business operations and must notify the supervisors when they are leaving.

• Work related emergencies fires, etc.• Time when an employee is called in and has to

be at work again• 1 approved class per semester• Meetings and required training

Hours Worked cont.

There are special regulations surrounding travel time for non-exempt employees.

• During regular work hours only during the regular work week• During regular work hours on weekends (University has decided to

pay beyond this (Talk to HR Consultant)• All hours if on a one day trip• An alternative is to flex time for a non-exempt employee during

that week.• Outside of regular work hours if

a) Physically driving to and from the destinationb) Working e.g. making work related calls, working on laptop etc.Contact Consultant for specific cases

FLSA does not govern the following:

• Breaks/lunch• Vacation• Sick leave• Holidays

Lunch Breaks-FLSA & State Law• Although the FLSA and state law do not require lunch

periods, per state law if lunch is taken, the period shall be no less than 30 minutes. UNM also has a UBP 3300, Paid Time governing lunch. The lunch period should be taken away from the work area and is unpaid.

• If a non-exempt employee eats lunch at his/her desk and answers the phone or speaks with customers, that individual is doing work and must be paid for the time.

• Remember the intent of the lunch period -- to rest and return as a productive and happy employee…

UNM Policy 3300

• Unpaid Time– Meal Breaks

• Managers should give 30 minutes to 1 hour for each 8 hour shift scheduled approximately in the middle of the shift. Subject to business needs.

• Manager may give 30 minutes to 1 hour for each shift of at least 5 hours. Subject to business needs.

UNM Policy 3300

• Paid Time– Rest periods

• 15 minutes for every 4 hour period scheduled in approximately the middle of the 4 hour period dependent upon business needs.

Employees should not work during this period as the policy is intended to allow the employee to rest.

Other Paid Time per Policy

• Annual Leave-This time is not included towards computation of overtime.

• Sick Leave-This time is not included towards computation of overtime.

• Holiday as defined per UNM-Is included towards computation of overtime (per University policy rather than FLSA).

Compensatory Time-UNM Policy 3310

Because we are a public employer, our supervisors may allow nonexempt employees to take compensatory time off in lieu of overtime pay. We must meet the following criteria:

Cont.

Both parties have to agree to the use of compensatory time. It must be captured in writing.

There is a maximum allowable accrual of 120 hours (see individual contracts for Unions). The employee must be paid time-and-a-half for anything above the maximum.

It must be used within 90 days (otherwise it must be paid. If the employee is under a union contract, these deadlines may vary)

Upon Separation from UNM, the employee must be paid for any unused compensatory time

Cont.Time off is taken at a rate of 1.5 X the number of hours

previously worked over 40 hours (convert the time to straight time. i.e.4 hours worked at time and-a-half equals 6 hours straight time).

Other Things to Keep in Mind

• Employees can only get paid for work already done or leave taken in compliance with policy.

State Law

• It is against state law to knowingly make or receive payment for services not rendered.

• The only periods during which an employee can be paid when not working are for approved leaves as defined under policy.

• See the University Business Policies or Student Handbook.

Other Issues to Consider

• Employees can not be pre-paid.• Employees have to have leave accrued to be paid

for time off.

In other words everything is in real time! It must be factual.

Other Issues to Consider

• Employees must be paid at the approved wage…no more, and no less.

• If Payroll is estimated because it is turned in early and the time changes, a payroll adjustment form must be used to correct it in the pay period.

• The employee must not start working until the hiring is complete.

Other Things to Consider

• Student Employment and Graduate Studies has certain allowable maximums that an employee must not work beyond. Circumventing their policies can have several implications which could affect the employee. (Contact Student Employment and Graduate Studies for maximums)

• In addition, circumventing the process or other pay policies by trying to make payment in another manner inconsistent with policy could be grounds for disciplinary action up to and including discharge.

Proper Cause for Disciplinary Action

• From UBP 3215, Performance Management

“Falsification (deliberate) or omission of information on employment applications or resumes, time cards/records, or other University records” constitutes proper cause.

Proper Cause for Disciplinary Action

• UBP 2200, Whistleblower Protection and Reporting Suspected Misconduct and Retaliation, Section 2 also defines misconduct as “Falsification of documents or reports.”

Shift DifferentialUnion Contracts (Subject to change with negotiations)

– CWA(see article 7 section 4): • 1) Normal work schedule requires more than 4 hours of work

between 4:30 pm and midnight=40 cents for the shift• 2) Normal work schedule requires more than 4 hours of work

between midnight and 8:00 am=50 cents for the shift• Applies to hours in entire shift

– USUNM (see article 11 section D): • 5% per hour when at least half of regular work hours are

between 4:30 pm and 12:00 midnight.• 10%per hour when at least have of regular work hours are

between 12:00 midnight and 8:00 am.• Applies to hours in entire shift.

Shift Differential Cont.-Policy 3500

• Non Union– Paid when at least ½ of hours worked are

between 4:30 p.m. and 8:00 a.m. the following day.

– Must be applied to all hours worked in the entire shift.

Contact your Manager re: shift differential rates.

Separations:

• Payment of wages should be paid within 5 working days of when you would normally be paid.

• You must make arrangements to turn in uniform and equipment to your supervisor. Complete the Separation Checklist located in UBP 3225, Separation Policy.

• If you are overpaid as a result of your separation, you will be responsible for reimbursing the University.

Volunteers• Services must be offered freely without the expectation of

compensation for services provided

• If the employee is employed by the same public employer providing the same types of services, the employee cannot be a volunteer

• A formal volunteer program should be in place.

• An employee may not volunteer in anticipation of securing a future paid position.

Volunteers Cont.

Rule of thumb: If we currently have a job description for that type of job, the person usually shouldn’t be a volunteer, particularly if the person will be used on a long term basis.

Call your Manager if you have questions.

Independent Contractors• Will the department:

– Need this individual for continuous employment?– Require him to have a UNM supervisor?– Require a set schedule or be on-call to the needs of the

department?– Use these individuals for short periods of time on an

annual basis i.e. summer employment?

If the answer is yes to any of the above, then you probably should be an employee and not an independent contractor.

Common FLSA Misunderstandings“My manager pays all office employees a weekly salary, so I

won’t be paid overtime.”

Weekly, salaried compensation is only one of the requirements for exemption. Duties must be of an executive, administrative or professional nature and must be over 50% of the job. Also, if the salary is under $23,660…you are non exempt. Period!

In other words, it doesn’t matter “how” (monthly vs. bi-weekly) you are paid. It’s based on “what” work you do and how much you make.

Common FLSA Misunderstandings“Our policy says overtime must be pre-approved. If I don’t get approval beforehand, I won’t have to be

paid overtime.”

By working the unapproved overtime, you have created a liability for the University. You will be paid. However, the manager will have to address the issue with you and may have to take action.

Common FLSA MisunderstandingsI work 80 hours a pay period (36 hours the first week and 44 hours the second week of the pay period so I won’t be paid

overtime.

False. You would be paid at 36 hours straight time for week 1 and 40 hours straight time plus 4 hours overtime for week 2.

There are some exemptions for emergency services (police,

fire, hospitals)

Common FLSA Misunderstandings-“If I go to training outside work hours, I won’t be

paid for the time.”

You are paid if you are required to attend the training.

Common FLSA Misunderstandings-“If I choose to eat lunch at my desk and end up

answering the telephone a few times, I don’t need to be paid for that time.”

To be considered unpaid time, an employee must be completely relieved of duties. If you answer phones while eating, you are performing employment-related tasks and must be compensated, regardless of whether you chose to eat at your desk.

Since overtime needs to be pre-approved, it is recommended you leave the work area at lunch.

Can my manager give me compensatory time as an exempt employee?

• You’re manager can flex your time as an exempt employee i.e. if you worked regularly well past 40 hours a week for the last month due to a project or high volume of work, your manager could allow you to leave a few hours early on a Friday etc. But it should not be on an hour-for-hour basis.

Questions?

• Contact your manager• Contact your HR Consultant on their direct line or

at 277-2013.• Contact Temp Services for Temporary Services

staff at 277-6947.• Contact Student Employment for student

positions at 277-5518.• Contact the Office of Graduate Studies for

graduate students at 277-7344.