Overtime & Fair Labor Standards Act

1. Overtime & Fair Labor Standards Act Revised December 2, 2009

2. Purpose of FLSA • Establishes minimum wage and overtime standards • Distinguishes between covered (non-exempt) and excluded (exempt) employees • Establishes overtime threshold (40 hr.) • Specifies record-keeping requirements

3. Types of FLSA Exemption Status • Exempt – not covered by FLSA (overtime pay not required) • Non-Exempt – covered under FLSA for time-and-one-half overtime pay

4. Exempt Positions under FLSA • Job Basis test: Must meet Executive, Administrative, Professional, or Computer Professional test for exemption. • Applies to each position individually based on duties and responsibilities - not to a class, Role, working title, or category of position. • Salary Basis test: Salary more than $455 per week, regardless of whether part-time or full-time – does not apply to teachers, employees practicing law or medicine, and outside sales employees.

5. How do you know FLSA status of classified positions? • EClass designates FLSA status. • HR Generalist (HRG) notifies department Personnel Administrator (PA). • PA can access FLSA status: • EClass in PEAEMPL or NBAJOBS in Banner • In NBAPOSN: • a checkmark beside “Exempt Indicator” = exempt FLSA status; • no checkmark = non-exempt status. • Employees should see their supervisor or PA.

6. Classified (C1, C2, C3, C4, C5, C6, and LE) • Exempt (C2, C4, C6, some LE) • In pay bands 4 and above, if job duties and salary basis exemption tests are met. • FLSA exemption status determined by HRG. • Non-Exempt (C1, C3, C5, some LE) • All in pay bands 3 and below. • In pay bands 4 and above, if job duties and salary basis exemption tests are not met. • FLSA exemption status determined by HRG.

7. Faculty (F1 – F6, A1 – A6, P1 – P6, M1 – M6, and O1 – O6) • All faculty positions must be Exempt. • FLSA exemption status determined by Provost or VPHS offices. • F1 – F6 and M1 – M6: Always exempt if teaching or practicing medicine; otherwise, job duties and salary basis exemption tests must be met. • A1 – A6, P1 – P6 , and O1 – O6: Job duties and salary basis exemption tests must be met. • If job duties or salary basis exemption tests are not met, these positions cannot be faculty.

8. Adjunct Faculty (AJ) • All adjunct faculty positions must be Exempt. • If primary job is non-exempt, overload job cannot be adjunct - must be treated as hourly. Contact your HRG for more information.

9. Adjunct Faculty (AJ) Who Teach AJ001 Adj Fac Credit Instructor, Pos #J00001AJ003 Continuing Education Instructor, Pos #J00003AJ004 Adj Faculty-Summer Only, Pos #J00004AJ005 Elderhostel Adjunct Instructor, Pos #J00005AJ006 Adj Fac Non-Credit Instructor, Pos #J00006 • FLSA exemption status determined by Provost or VPHS offices. • Under FLSA, teaching as primary duty is always considered exempt.

10. Adjunct Faculty (AJ)Who Don’t Teach AJ002 Adjunct Faculty Non-Teaching, Pos #J00002 • FLSA exemption status determined by Provost or VPHS offices. • Both job duties and salary basis exemption tests must be met. • Must make at least $455 per week, unless teaching, practicing law or medicine, or outside sales. • If job duties or salary basis exemption tests are not met, these positions cannot be adjunct faculty. Contact your HRG for more information.

11. Graduate Assistants (GA and G9) & Post-Doctoral Scholars (PD) • Graduate Assistants and Post-Doctoral Scholars are considered Exempt under FLSA.

12. Hourly (H1), Student Workers (SW), Work-Study (WS) • All hourly employees (except teachers or those practicing medicine) are considered Non-Exempt under FLSA.

13. Exempt Employees • Paid for job, not hours worked. • No overtime payments required. • In extremely rare situations, may provide: • Compensatory time or straight-time pay for hours worked>40 hours in a workweek. • Should be for short duration of time under special circumstances (vacancy, special project, etc.).

14. Non-Exempt Employees – Overtime Compensation • Must receive 1 1/2 times regular rate for all hours worked in excess of 40 in a workweekor overtime leave. • Time-and-One-Half Overtime • Overtime Leave • If leave was taken during week, non-exempt employee receives regular rate (straight time, 1 hour = 1 hour’s pay) for hours worked in excess of scheduled hours up to 40 during a workweek. • Straight Time Overtime

15. Non-Exempt Critical Term: “Hours Worked” • Principal job activity • “Suffer” or permit to work • Rest periods less than 20 minutes in duration (except lunch)

16. Non-Exempt Critical Term: “Workweek” • Workweek begins at 12:01 a.m. on Sunday and ends at 12:00 a.m. (midnight) on Saturday • 168 consecutive hours during a 7-day period

17. Non-Exempt Critical Term: “Regular Rate” • Includes all forms of remuneration (e.g., shift differential, on-call pay, lump-sum payments, second job salary) • Converted to HOURLY rate • Particular to each workweek

18. Non-Exempt Compensable Time Examples • Perform principal duties • Perform principal duties or closely-related duties outside of work hours • Travel time between job sites • Employer-required training • Breaks (<20 minutes) • Pre- and postliminary activities (checking job locations, fueling cars, picking up mail at P.O., putting away tools at end of day)

19. Non-Exempt Compensable Time Examples • Preparatory work related to principal duties • “Waiting” or “standing by” for work • “Unauthorized” work performed (with or without supervisor’s knowledge) • Arrives early to work and begins working • Meal time - if employee is not “free” from work duties

20. Non-Exempt Compensable Time Examples – Unauthorized Work • Work not requested but “suffered or permitted” is counted as time worked • Standard is whether employer knows or has reason to believe the work is being performed

21. PRIMARY JOB OVERLOAD JOB OVERTIME PAYMENT? EXEMPT EXEMPT NO EXEMPT NON-EXEMPT NO NON-EXEMPT EXEMPT YES NON-EXEMPT NON-EXEMPT YES Overload Jobs If primary job is part time, department must consult with HRG.

22. FLSA Violations • U.S. Department of Labor (DOL) enforces FLSA • Burden of proof is on employer • If violation found to be willful, employee can sue employer for recovery of back wages and liquidated damages for up to 3 years • Employer cannot retaliate against employee for “whistle blowing”

23. Potential DOL Penalties • Unpaid wages (2 - 3 years of back wages) • Fines ($10,000) • Imprisonment (6 months) • Liquidated damages (2x) • Attorney fees and costs • Individual liability

24. Banner Overtime Authorizations FLSA STATUS NON-EXEMPT FLSA STATUS EXEMPT OT2Overtime Classified @ 1.5 OT1Additional Paid Time @ 1.0 Exception OT1Additional Paid Time @ 1.0 OT2Additional Paid Time @ 1.5

25. For more information… • Contact your HR Generalist • Review “Overtime Guidelines” and related links on the VCU HR Compensation Management webpage at www.hr.vcu.edu/policies/FLSA%20handout.pdf • See “VCU Banner Leave Reporting and Timekeeping Manual” at www.hr.vcu.edu/forms/Banner_Leave_Reporting&Timekeeping_Manual.pdf