Yes. Teachers are exempt from the new FLSA regulations if their primary duty is teaching, instructing, lecturing or tutoring. This includes graduate students whose primary duty is teaching or serving as a teaching assistant.
Certain academic administrative personnel, such as counselors, department heads, and academic advisors are exempt if they are paid at least as much as the starting salary for teachers at their institutions.
Athletic coaches and assistant coaches are exempt if their primary duties involve teaching. This includes instructing athletes on how to perform their sport but excludes recruiting.
This group of affected employees will become salaried, non-exempt, which means they will continue to receive a consistent amount of pay each pay period. The difference is that if/when these employees report over 40 hours in a defined work week, they will be paid overtime for those additional hours.
All non-exempt employees who report over 40 hours in a defined work week must be compensated for all hours worked. Non-exempt employees must be compensated at a premium rate (time and a half) for all hours worked over 40 in a defined work week. Our work week is Sunday through Saturday. Please keep in mind that paid leave time (vacation and sick) does count towards the total hours worked in a defined week.
No. They are considered to be salaried and will receive the same pay amount each pay period. They will still be expected to report leave time (vacation and sick). The only change is that they will also report any time worked in excess of 40 hours in a work week. The determination of 40 hours “worked” must also include vacation and sick time.
Managers and supervisors may need to set new expectations and change department schedules or behaviors in order to manage hours worked within budgets. It is important to clearly communicate any new department standards or business processes to newly non-exempt employees. These communications should include:
Guidelines for using mobile devices outside of normal work hours to respond to calls or emails (See related FAQ)
Adjustments to work schedules when work must occur outside of normal business hours (See related FAQ)
Communicating a clearly defined overtime approval process to your non-exempt employees can assist you in managing both time and budget resources. However, while non-exempt employees should seek pre-approval before working overtime, it is important to remember that all overtime must be paid, whether pre-approved or not.
Employees in this group will report overtime directly to their supervisor. The supervisor is responsible for recording the overtime hours worked on a designated webpage. Overtime hours need to be submitted by noon on Tuesday’s for the hours worked in the previous week.
Yes. If overtime hours are worked by non-exempt employees they must be paid, even if unapproved. That is why it is critical to establish how overtime approval will be handled and communicated to everyone in your unit. The guidance for affected employees should reiterate that employees should seek approval before working any overtime, but you can help by establishing rules in your unit for seeking approval in advance for projects or events that may be deadline driven and require additional hours. Since more employees in your unit may now be eligible for overtime, you will need to consider this impact when planning your overtime budget. Note that if an employee continues to work overtime without supervisory approval, then the supervisor could begin the appropriate disciplinary action with the employee.
Yes. Salaried non-exempt employees will continue to be paid on a salary basis. Moreover, we are required to pay the overtime if it has been worked. If a change is needed after the cutoff date, you will need to work directly with Payroll and additional information may be required. Therefore, it is very important for you to review the information to ensure that your employees are paid accurately.
Yes. Flex scheduling is allowed within the same work week. As an example, let’s say a typical schedule is 8 hours a day during the day, and the department needs an employee to work a special event for 4 hours during the evening. The schedule may be changed to give the employee 4 hours of time off at another time during the same work week.
No. Non-exempt staff should be paid for overtime hours worked. Other forms of payment, such as compensatory time off, are not to be used except where legally required (i.e., if work is performed on a holiday).
Depending on your department’s needs, you may need to adjust your salary budgets. Remember that rearranged work schedules may be an option in lieu of overtime, as long as the hours worked do not exceed 40 in a single work week. These types of schedules provide flexibility for both the department and the employee. If an employee’s hours reported exceed 40 in a single work week, the employee must be paid overtime.
Yes, you can adjust the work hours of an employee to meet the needs of the department. When possible advance notice (a minimum of two weeks), of such changes should be given to the employee. You can rearrange hours from day to day within the same week, but the regulations do not allow you to move hours from one week to the next without incurring overtime for the week in which the hours worked exceed 40 (even if the hours worked in the preceding or following week were less than 40). The determination of 40 hours “worked” must also include vacation and sick time, per policy.
Yes. Keep in mind employees will be guaranteed their 8 hours each day unless you ask them to flex their hours. Any hours worked in addition to their 8 hours each day (Monday through Friday) and on the weekend must be considered. For example, if an employee drove on a Saturday or Sunday during hours that would be considered work hours, the employee must be paid for that time. If the employee was traveling on a plane, train, bus, or in a bus or vehicle but not doing the driving, that time would not be considered work hours (unless work was being performed). For more information on travel, please refer to the Department of Labor Worksheet 22.
If an employee is mandated to attend a training related to his/her individual job, the training is considered involuntary and the employee must be paid for the time. According to the Department of Labor, training is not work time if all four of the following criteria are met:
Training is outside of working hours, and
Training is voluntary, and
Training is not directly related to the job, and
The employee has no productive work during attendance.
If all four of the above criteria are met, then the training would be considered voluntary and the employee would not be paid.
Employees do not need to clock out/in for lunch. They are guaranteed 8 hours of pay each day, unless you work out a flex schedule with them. If they work through lunch and this results in a total of hours worked, vacation, and sick time in excess of 40 hours in the work week they must be paid overtime. Working through lunch is a case in which advance approval should be required.
Current job postings and offer letters do not indicate exempt status so no changes are needed. During the interview process, if the question of overtime eligibility comes up, you can say the position is subject to FLSA review and that the job category and exemption status could change as a result. As of Dec. 1, 2016, there will be a revised Unclassified Employment Agreement that will reflect the new category of Unclassified Salaried Non-exempt full time.
For salaried nonexempt employees who respond to emails or calls outside of normal work hours on a “regular” basis, that time is counted as work time for overtime purposes. (If a non-exempt employee responds to emails or calls briefly and “very occasionally,” then court cases have considered that to be “de-minimis” and therefore not counted for overtime purposes.) However, supervisors have discretion to establish overtime approval processes.
After Dec. 1, 2016, if an exempt employee moves from full-time to part-time, he or she must be reclassified as hourly if the change causes the compensation rate to fall below $47,476. Managers should be sure to discuss this implication with any employee considering a reduced schedule. Prior to changing to an employee to part-time, there must be a conversation with Human Resources (i.e., Talent Acquisition and Compensation).
A staff member on a leave of absence, using extended sick time or on a work break during the implementation period may be identified for transition to salaried non-exempt status. This change will be effective when the employee returns to work.
The revised FLSA salary threshold is $47,476 annually or $913 per week. These employees may be considered exempt under the FLSA if they make at least $913 during the weeks that they are employed (and their duties meet the exemption test). It is critical that employees in this category perform no work outside of the nine- or 10-month period.
In general, simply being on call does not create an overtime situation. However, if the employee is required to remain at a particular place to wait to be contacted for possible work (i.e., the employee is “engaged to wait”), this will normally result in the time waiting being treated as overtime.