Fair Labor Standards Act

(FLSA)

What does work look like?

Fall 2016

Presentation Outline

What You Need to Know about the Fair Labor Standards Act

What You Need to Know about Overtime

What Does Work Look Like?

Tracking Work Time

Managing Change

Q & A

2

3

What You Need to

Know about the

Fair Labor

Standards Act

FLSA New Rule

Effective date December 1, 2016

• New salary threshold: $913 per week, $47,476 annually

• All positions below the new salary threshold will revert to nonexempt

effective December 1, 2016

• Notification of change in exemption status will be sent to currently

exempt employees transitioning to nonexempt status by October 31,

2016

• Automatic update of the salary threshold every three years - next

update January 1, 2020

Fines and penalties may be assessed for noncompliance

• Back pay for two years, or three years for willful noncompliance

• Penalties – up to $1,100 per employee

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How is FLSA Status Determined?

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Duties Test

Salary Test

Pass!

Job Info

Job Info

Job Info

Job Info

Job Info

Job Info

Job Info

Exempt Status

1. Salary Test – Must be paid on a

salary basis and the actual pay must be

$913 per week ($47,476 annually) for

both full and part-time positions

2. Duties Test – Exempt duties

need to be 50% of the overall

assigned tasks

3. A position must pass both tests in order

to be determined exempt from overtime. If

a position fails either the Salary or Duties

Test, it is nonexempt

Two tests determine FLSA status

FLSA status is tied to a position, not a person.

When the FLSA determination is in question,

it will be nonexempt

Job Info

Employment Relationship

According to the Department of Labor, FLSA applies when an

employment relationship between the employer and the employee

exists

• Employees

o State Classified, Administrative Professional, Research Professional and

Postdoctoral Research positions are considered employees and FLSA

applies

• Non-Employees

o Graduate Teaching Assistants (GTAs) and Graduate Research Assistants

(GRAs) are considered students, paid through a stipend, and are fulfilling

the requirements of an advanced degree

o Per the Department of Labor there is not an employer/employee

relationship and FLSA does not apply

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Who Determines the FLSA Status?

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The HR Classification/Compensation and Employment Units receive the

position descriptions and based on the duties and salary of the position

determine the overtime exemption status

Law

Position Duties

Position FTE/Change in Pay

Other relevant factors

DoL Opinion Letters

Final FLSA

decision

(nonexempt/

exempt)

Admin ProfessionalResearch/Post-Doc

State Classified

T

M

S

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What You

Need to Know

about Overtime

Overtime Defined

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Hours Worked Overtime Workweek

Any time a

nonexempt

employee is

suffered or

permitted to work

for the benefit of

the employer

Any hours worked

by a nonexempt

employee beyond

40 hours in a

workweek

• Compensated at

one and one-half

times the hourly

rate of pay

• Compensatory

Time Off Policy

Any regular recurring period

of 168 hours – seven

consecutive 24-hour periods –

designated as a period of

work for an employee

• CSU established workweek is

Saturday 12:01 am through

Friday

• Deviations must be approved

in writing by Human

Resources

Tools for Managing Overtime

10

Flex Hours: Time

worked beyond the

8-hour work day

may be flexed and

used within the

same workweek

Cash: Paid at one

and one-half time

the hourly rate for all

hours worked over

40 in a workweek

Compensatory Time:

Accrued at one and

one-half times for every

hour worked over 40 in

a workweek

Nonexempt

employees -

required to sign

Compensatory

Time Agreement

Maximum amount

of compensatory

time a nonexempt

employee may

accrue is

240 hours

Departments

may opt for

lower

maximum

accruals and/or

pay out options

Variations to the Work Schedule

May redefine a workday

• May delay start time and work into evening hours

o Work 12 pm to 8 pm

• May group schedules to accommodate the needs of the

department

o Work 9 am to noon, non-work break, return 3 pm to 8 pm

o Varying weekly schedule

• Saturday, Tuesday and Wednesday - 10 am to 7 pm with lunch

• Thursday and Friday - 7 am to 4 pm with lunch

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What Does

Work Look

Like?

Determining Hours Worked Can be

Complicated

Nonexempt employees

• Must be compensated for all hours worked in a workweek

o Assignments within two or more departments must be coordinated

with the primary department to limit overtime hours

• Must be compensated for any additional hours the employee is

suffered or permitted to work

o Work performed above the regular 40 hours that is not pre-approved

is work time and must be compensated

o Employees consistently working overtime without supervisor approval

may be subject to corrective/disciplinary actions

• Contact your HR Solutions Partner or HR Liaison before action is

taken

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Work Time Activities

Work Time Activities

• Crafting/responding to business emails/correspondence

• Making/receiving work phone calls

• Creating/revising presentations

• Reviewing applications

• Donning/removing safety equipment

• CSU sporting events/fundraising events

Not Work Time Activities

• Commuting to and from work

• Social dinner with colleagues

• Down time in hotel room

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Meal Periods

Scheduled meal periods are discretionary

• Don’t count as hours worked as long as the nonexempt employee is

relieved of all duties for the purpose of eating a meal

• Must be at least 20 minutes

• Nonexempt employees who work through a meal period must be

compensated

• Nonexempt employees who routinely work through a meal period

without Supervisor approval may be subject to corrective or

disciplinary action

• Contact HR Solutions Partner or HR Liaison before action is

taken.

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Rest Periods

Rest periods are discretionary

• If granted, rest periods of short durations (5 to 20 minutes) are

included as part of the 8 hour workday and considered hours

worked

o Examples – coffee/snack, health breaks, etc.

• Rest periods cannot be used for

o Overtime/compensatory time (already paid time)

o Extending the meal period, leaving work early or arriving late

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Waiting Time

Waiting time is counted as hours worked when

• A nonexempt employee is unable to use the time effectively for

personal purposes

• The time is controlled by a Supervisor

o Example - An Academic Advisor is waiting 30 minutes for a student to

arrive for an appointment. Waiting time = hours worked

Waiting time is not counted as hours worked when

• A nonexempt employee is completely relieved from duty and

required to return to work at a set time

• The duration is long enough to allow the employee to use it

effectively for personal purposes

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On-Call Time

On-call time is hours worked when

• A nonexempt employees has to stay at a designated worksite

• A nonexempt employee has to stay close to the worksite and

cannot use that time effectively for personal purposes

• A nonexempt employee responds to a 15 minute phone call and

does not have to report to campus

On-call time is not hours worked when

• A nonexempt employee is given the freedom to pursue personal

interests/activities while on-call

• A nonexempt employee is provided with a radio, beeper or cell

phone and no work activities occur

o Example – Nonexempt employee must be available to receive calls

and report to campus if needed, and no calls are received

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Call Back Time

Call Back time occurs when a nonexempt employee is called back

to work before their scheduled shift or after leaving the place of

work upon completion of the shift

• Call back time shall be for a minimum of two hours or actual time

worked, whichever is greater

• Compensation shall be at the hourly equivalent of standard rate of

pay, subject to CSU’s overtime policies

• The minimum of two hours of compensation shall be counted as two

hours worked when computing the total number of hours in the

workweek

Example – A nonexempt employee is called back to campus resulting in one

hour of actual work. Credit will be given for two hours of work. If overtime for the

week results, the time will be compensated as overtime or compensatory time.

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Remote Access and Cell Phones

A nonexempt employee cannot agree that (s)he will not be paid

for the hours spent on work related tasks outside of a normal

workday

Remote Access/Emails

• Time spent working through remote access or answering emails is time

worked

Cell Phone Usage

• No change to CSU’s Mobile Communications Policy

• Time spent communicating on work related matters is time worked

Waiting Time

• Time spent waiting for a call at the direction of the supervisor or in

between work related email responses may also be included in the total

work hours

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Training/Professional Development

Time nonexempt employees spend in lectures, seminars, classes

or training is considered hours worked and must be tracked and

paid, unless all of the following criteria are met

• Attendance is outside of normal working hours

• Attendance is voluntary

• The course, lecture or meeting is not job related

• The nonexempt employee does not perform any productive work

during attendance

o Responding to emails would be work time

Supervisors need to establish expectations with nonexempt

employees as to what is considered work hours

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Travel Time

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Time spent

commuting between

home and work is

not work timeTime spent traveling as

part of the principal

activity must be counted

as work time (i.e.,

Traveling from high

school to high school

during the work day)

Overnight travel away from

home is considered time

worked when it occurs

during a nonexempt

employee’s normal daily

work schedule

Time spent traveling

during normal daily

work schedule is

counted for Saturday

or Sunday Travel

Overnight travel outside

the normal daily work

schedule is not

considered work time,

unless assigned specific

work tasks

All time spent traveling for a

Special One Day Assignment to

another city is work time

FLSA does not apply when traveling to an exempt country if all work is done during

the employee’s regular established

workweek

Special One Day Assignment

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A nonexempt employee is given a one day special training

assignment in Denver. The employee leaves at 6:30 a.m.

and returns at 5:30 p.m. The employee’s daily commute to

CSU is 30 mins one way and the employee has a one

hour meal break.

What are the hours worked for this special

assignment?

This would result in a 7:00 a.m. to 5:00 p.m. workday

with one hour lunch for total time worked equal to 9

hours.

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Overnight Travel

A nonexempt employee works from 7:30 am to 4:30 pm, Monday-Friday. The employee must travel out of state to attend a

business meeting. The employee leaves Fort Collins at 12:00 pm to catch a flight out of Denver at 3:00 pm on Sunday (3 hour

flight). The employee arrives at 5:00 pm (6:00 pm Fort Collins). During the flight the employee prepares notes (2 hours) and then

continues to review files in the hotel room until 9:00 pm (3 hours). On Monday, the employee takes a taxi to the meeting at 7:30

am and arrives at 8:00 am. The employee finishes the meeting at 1:30 pm and departs on a 3:00 pm flight arriving in Denver at

7:00 pm (3 hour flight). No work is conducted during the return travel. The employee arrives at home at 9:30 pm on Monday.

How is this employee compensated?

1 2

Non-work related

time spent as a

passenger on the

plane would not

be compensable.

The 2 hour of

preparation for

the meeting is

work time.

3

The taxi ride is

work time since

it occurred

during normal

work hours.

4

Travel time

during normal

work hours is

work time.

5

Travel time to

the airport and

some flight

time (through

4:30) is work

time.

6

Non-work time

in hotel after

normal work

hours is not

compensable.

Three hours

spent on

preparation

in the hotel is

work time.

Normal

commute time

is not work

time.

97 8

Travel time

outside of

normal work

hours is not

work time.

10

Travel time

from 4:30 to

9:00 is not

work time.

Travel Time Review 1

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Normal working hours 7:30 a.m. to 4:30 p.m.,

Monday-Friday.

The employee leaves Fort Collins at 12:00 p.m. and catches

a flight from Denver at 3:00 p.m. on Sunday (3 hour flight).

Q: What is the total compensated travel time?

A: 4.5 hours – Hours traveling during the

employee’s normal work hours (12:00 to 4:30)

Travel Time Review 2

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Normal working hours 7:30 a.m. to 4:30 p.m., Monday-Friday.

The employee leaves Fort Collins at 12:00 p.m. and catches

a flight from Denver at 3:00 p.m. on Sunday (3 hour flight).

During the flight the employee prepares notes (2 hours) and

continues to review files in the hotel until 9:00 p.m. (3 hours).

Q: How many hours spent in the airplane and

hotel would be considered compensable time?

A: 3.5 hours – Employee may already be compensated for

work based on travel time during normal work hours.

Travel Time Review 3

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Normally working hours 7:30 a.m. to 4:30 p.m., Monday-Friday.

Q: Taking into consideration the days the employee is

traveling, how could you reallocate hours/days to

limit overtime?

A: Total hours worked 41.00; supervisor can flex 7.5

hours for Sunday and pay overtime/compensatory time

for 1 hour

Days Sat Sun Mon Tues Wed Thurs Fri Total

Worked 7.5 9.5 8.0 8.0 8.0 FLEX 41.00

Volunteering

A nonexempt employee volunteering to work CSU events must

be compensated for hours worked when tasks are similar to the

normal duties of the employee

Exception – A nonexempt employee is considered to be a

volunteer when all of the following conditions are met

• Services are not similar/related to the type of service the employee

is employed to perform

• Services rendered are done so freely and without coercion

• Services are performed for civic, charitable or humanitarian

reasons for which no compensation is received beyond expenses

or a nominal fee

o Example – A nonexempt employee from Human Resources volunteers

to take tickets at a basketball game for CSU

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24 Hour Duty Assignments

Overnight travel is considered time worked during an employee’s

normal daily work schedule including Saturday and Sunday. Whereas

time outside the normal daily work schedule is not considered work

time, unless assigned specific work tasks.

o Designated Night Duty Counselor

The employee and employer should have an agreement excluding

bona fide meal and scheduled sleeping periods for employees required

to be on duty for 24 hours or more.

o Excluded time should not be more than 8 hours

Interrupted sleeping periods due to a call to duty are counted as hours

worked. If the interruption prevents the employee from getting at least

five hours of sleep, the entire period must be counted as time worked.

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Review – Scenario 1

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A nonexempt employee is on his 30-minute lunch break, which he takes at his desk. The phone rings

and no one answers the call, so he answers the phone. The situation took a total of 15 minutes.

Did the employee engage in work? What happens to his lunch break?

Yes! Since the employee answered the phone, he performed a

work function and needs to be compensated for his time worked. Also, he needs to be paid for his entire lunch break because he

wasn’t able to use his lunch break for his own purposes.

Review – Scenario 2

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An Academic Advisor has an appointment with a student on Saturday, and the student calls the

Academic Advisor at home before the meeting to notify them of a two-hour delay.

Did the Academic Advisor engage in time worked?

Yes! The phone call from the student was time worked and

should be tracked. The two-hour delay would not be time worked as the Academic Advisor was not on campus and was still permitted to tend to personal activities during that time.

Review – Scenario 3

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A nonexempt Postdoctoral Fellow is working after hours in the lab performing research and administrative duties, such as –

catching up on emails, ordering laboratory supplies and preparing the lab for the next day’s activities. Upon returning

home, she reads scientific periodicals not related to the research she is performing.

Did the Postdoc engage in work time?

Yes and No. Since the employee was reading periodicals not related to research or

the work being performed, that is not considered hours worked, so the employee is not paid for that time. However, when the employee is performing administrative duties

that are directly related to the work being performed, that is considered hours worked and that time must be tracked and compensated.

Supplemental Pay

Supplemental pay cannot be added to the nonexempt base salary to meet

the new salary threshold.

Supplemental pay for the additional duties should be calculated at one and

one-half times the regular rate of pay for any hours worked over 40 per

week

o Even if the supplemental pay duties are exempt in nature (teaching)

All hours worked associated with supplemental pay must be tracked and

verified to ensure the correct overtime rate of pay

Employees must coordinate between each department to ensure proper

tracking and compensation

Refer to the University’s Supplemental Pay policies for information on acceptable duties and approval

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Tracking

Work Time

Myth Busters

Myth – All Administrative Professional (AP) positions are

exempt from overtime requirements

o Fact – Some AP positions are nonexempt and eligible for overtime.

This depends on the annual salary and position duties.

Myth – All positions below the new salary threshold will

receive an increase to at least $47,476

o Fact – Not all positions will receive a salary increase. Departments

will assess each position and develop strategies to manage

overtime costs.

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Record Keeping

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FLSA requires employers to keep records of hours worked

• Nonexempt employees must report total hours worked each day

and submit a weekly timesheet for Supervisor approval

o Punching in and punching out is not a FLSA requirement

o Colleges/Units may have different processes in place for tracking time

o Excess regular hours are used for part-time positions under 40 hours

Overtime must be pre-approved by the Supervisor

• If not pre-approved, overtime worked must still be compensated

o Supervisors may authorize a maximum number of overtime

hours that can be worked without pre-approval

• Overtime worked and not pre-approved may lead to corrective

action/discipline

Exempt employees do not track time worked

Overtime Examples

How many hours of overtime worked?

Example 1

• 3.4 – Sick leave, annual leave and holidays are included in the computation of overtime

Example 2

• 0 - Compensatory time is not counted as hours worked in the computation of overtime

as it is a form of compensation and not hours worked.

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Hldy/leave 8 8

Days Sat Sun Mon Tues Wed Thurs Fri Total

Worked 9.4 8.25 9.75 27.40

Sick 8 8

Grand Total

43.40

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Managing

Change

Transitioning to Nonexempt

Changes

• The position is now eligible to earn overtime/compensatory time

• Increased communication with supervisor on work schedule

Stays the Same

• Annual salary

• Level of authority/status in department and across campus

• Autonomy and level of decision making

• Supervisor responsibilities

• Career development and path choices

• Benefits

• Available programs and services

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Leading the Team

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Be knowledgeable of the FLSA rule changes

Understand how your department or program will manage overtime• Cash payment

• Compensatory time accrual

• Flex time within the same week

Understand how to track hours worked and submit time for

nonexempt employees

Make use of the resources available to

you and your team• HR Solutions Partners

• HR Liaisons

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3

4

Spread workload evenly amongst team• Don’t overburden exempt employees

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Resources

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HR website – 2016 Changes to the Fair Labor Standards Act (FLSA)

http://www.hrs.colostate.edu/compensation/flsa.html

U.S. Department of Labor Wage and Hour Division Final Rule: Overtime

https://www.dol.gov/WHD/overtime/final2016/

CSU – Compensatory Time Off Policy & Agreement

http://policylibrary.colostate.edu/policy.aspx?id=716

HR Employee Manual

http://www.hrs.colostate.edu/policies/hrs-manual.html

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Questions