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AS State Personnel
Classification and Compensation
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FAQs -- Fair Labor Standards Act (FLSA)
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- What happens if a State employee works for two State agencies?
Non-Exempt State employees working for more than one State agency are considered to work for
one employer. Therefore, the hours worked at both agencies must be combined to determine if
the employee is entitled to any overtime pay.
Note: Elected officials, their personal staff and legislative employees are not covered by
FLSA. SOS Non-Exempt employees would be covered by FLSA and considered to work for the same
employer, unless appointed by an SOS vendor.
- What happens if a Non-Exempt employee works for a State agency and the University?
The university is considered to be a separate employer. Therefore, the State agency and
University hours worked need not be combined.
- Can an individual, at the same time, be an employee and independent contractor for the
State?
The Department of Labor has traditionally held that “it is unrealistic to assume that an
employment and independent contractor relationship may exist concurrently between the same
parties in the same workweek.” Therefore, in most cases, the individual would have two
appointments and the hours from these appointments would need to be combined to determine any
overtime entitlement.
- What is the relationship between the Labor Contract and the FLSA legislation?
The Labor Contract cannot eliminate an overtime entitlement provided by federal legislation.
However, the Labor Contract can provide a greater entitlement to overtime compensation. For
example, the Labor Contract might provide overtime eligibility to some positions determined
to be FLSA Exempt.
- Can rules-covered Exempt positions receive any overtime?
An agency head, may request approval from the Director of Personnel, AS State Personnel
Division, to grant straight time overtime compensation to exempt staff for special
circumstances or emergency situations.
- What changes occurred to the FLSA legislation in 2004?
On August 23, 2004, new federal regulations regarding “white collar” exemptions to the
FLSA became effective. Please see the explanation of the Executive,
Administrative, and Professional
exemptions outlined in the AS State Personnel website.
- In what situation may a deduction be made from the compensation received
by a Exempt employee?
Typically, an Exempt employee regularly receives a predetermined amount constituting all or
part of the employee’s salary, which amount is not subject to reduction because of
variations in the quality or quantity of work performed. An exempt employee must receive a
full salary for any week (other than first or last week of employment) in which the employee
performs any work. If an employee is ready, willing, and able to work, deductions may not be
made in anything other than full week increments when work is not available because the
employee’s absence was not within the employee’s control. Chapter 9
003.02A of the Personnel Rules reflects this philosophy by stipulating that an exempt
employee's salary is not subject to reduction for absences of less than one day. A public
sector employee's salary may be reduced by a budget induced furlough of at least one day
period.
- Are meal periods and breaks considered to be hours of
work?
Meal periods generally are not considered to be hours of work if they are 30 minutes or
longer, and the employee is relieved of all duties and is free to use the time effectively
for a meal. Employees voluntarily taking lunch at their desks may have the period counting as
work time if the lunch involves answering the phone or other work interruptions longer than a
few minutes or multiple interruptions. Rest periods of less than 20 minutes are counted as
hours of work.
- What happens if a Non-Exempt employee works an extra five
minutes, at the end of the day or starts work five minutes early?
Normally, any amount of time less than 7½ minutes is considered to be insignificant and
would not be considered as hours of work. Employers may record employee starting and stopping
time to the nearest quarter hour. Note: the mere fact that the employee comes to work early
does not mean that this time is counted as hours of work. The determining factor is if the
employee is performing work to the advantage of the employer.
- What is the “suffer or permit” concept under the FLSA?
An employer must compensate an employee for unauthorized work that, even though not
authorized, is performed with the knowledge or acquiescence of management. The employer must
pay for the unauthorized work whenever it is performed even if the employee does not make a
claim for overtime. The unauthorized work has been performed for the benefit of the employer.
- What is included in the regular rate of pay to determine
the overtime pay rate?
Generally, the employee’s “regular rate” for the overtime compensation includes all
remuneration for employment such as salaries, shift and weekend differentials, on-call pay,
and certain stipend or bonus payments. Remuneration for uniform allowances, meal allowance,
and tuition reimbursement is not included. Note: Additional compensation such as shift
differential received during a week involving overtime work must be included in and will
increase the “regular rate” amount utilized to determine overtime compensation.
- What hours are not considered work hours for overtime purposes?
Holidays are considered as work hours. Leave time (vacation, sick, etc.) are not considered
as hours worked. Hours worked on an employee’s designated holiday shall not be considered
as hours worked for overtime purposes.
- How long do employers need to retain mandatory wage and hour
records?
Records for Non-Exempt and Exempt employees must be kept for a three year period and kept in
a format open to inspection and transcription by the Wage and Hour Division. The following
mandatory wage and hour records must be maintained:
- Non-Exempt Employees
- The employee full name as used for Social Security purposes and any employee
identification number
- Home address and ZIP code
- Date of birth (if under 19 years of age)
- Employee’s sex and occupation
- Time and day of week on which the employee’s workweek begins
- The regular hourly rate of pay or other basis on which wages are paid
- Hours worked each workday and total hours worked each workweek
- Total daily or weekly straight time earnings or wages
- Total overtime excess compensation for the workweek
- Total additions to or deductions from wages paid in each pay period as well as a
breakdown of the items constituting the additions or deductions
- Total wages paid in each pay period
- Dates of payment and the pay period covered by the payment
- Exempt Employees
- The first five items listed above for Non-Exempt employees and the basis on
which wages are paid to the employee, in sufficient detail to permit calculation for each
pay period of the employee’s total compensation for employment, including fringe
benefits.
- Is time spent changing clothes and washing up after a
shift considered to be hours worked?
Normally, such before and after activities are incidental to work and are not considered as
hours of work. However, job related activities that are required as part of an employee’s
work such as pre-shift briefings, fueling cars, cleaning up the work area, and filling out
time cards are considered as hours of work.
- Is training time counted as hours of work for overtime?
Attendance at lectures, training programs, and similar activities need not be counted as
working time if all of the following four criteria are met: 1) attendance is outside of the
employee’s regular working hours, 2) attendance is, in fact, voluntary, 3) the course,
lecture, or meeting is not directly related to the employee’s job, and 4) the employee does
not perform any productive work during such attendance.
- When is an individual a State employee or an independent contractor?
The Department of labor utilizes the following factors when qualifying an individual as an
independent contractor: 1) The extent to which the worker’s services are an integral part
of the employer’s business, 2) The permanency of the relationship, 3) The amount of the
worker’s investment in facilities and equipment, 4) The nature and degree of control by the
worker/employer, 5) The worker’s opportunities for profit and loss, and 6) The level of
skill required in performing the job and the amount of initiative, judgment, or foresight in
open market competition with others required for the success of the claimed independent
enterprise.
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page last updated: 04/07/2010 03:47:19 PM
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