november 2008 s 1uic hr compensationconfidential commitment * customer service * competence *...

November 2008 S 1UIC HR Compensation

Confidential

Commitment * Customer Service * Competence * Communication

The FLSAWhat You Need to Know

University of Illinois at ChicagoOffice of the Vice Chancellor for Human Resources

Compensation 2009

November 2008 S 2UIC HR Compensation

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Frequently Asked Questions

15 May 2007; S 3UIC HR Compensation

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Overtime

Question:If an employee is exempt, can you still choose to classify

him as nonexempt and pay him hourly with overtime?

Yes, you can classify an employee as hourly and pay the employee overtime, even employees who

could otherwise pass the exemption test.

2005 B LR Business and Legal Reports 22


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Salary Basis

Question:

Can an exempt employee be paid additional compensation without jeopardizing the exemption status

Yes. An employer may provide an exempt employee withadditional compensation without losing the exemption or violating the salary basis requirement, if the employment

arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis.

Caveats: pay basis, duties performed

FLSA Online


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Overtime

Question:We have an employee who has 2 jobs, one is exempt and

the other non-exempt. Do I need to pay her overtime for non-exempt duties?

If an exempt employee works a second non-exempt job, it will likely compromise the employee’s

exempt status. Please contact the Compensation Department for interpretation of UIC Policies



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Salary Level

Question:We have an employee in a management position who is paid by the

hour. She earns over $455 per week. She also meets the duties test for the executive exemption. First would this employee be non-exempt? And if so, is it legal to give her an extra week of

vacation to cover any overtime?

Anyone paid on an hourly basis other than certain employee groups such as exempt computer

professionals, would be nonexempt and entitled to overtime.

Providing vacation rather than overtime payment is not legal under the FLSA. This person is entitled to

overtime for any hours worked over 40 in one week

2005 B LR Business and Legal Reports


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Salary Level

Question:Is it legal to pay overtime with compensatory time in lieu of cash?

Not in the private sector. However, the Act provides an element of flexibility to State and local

government employers. The exemption authorizes a public agency to provide compensatory time off (with certain limitations). There are several rules

to consider.

DOL 29 CFR 553.20 Introduction


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Salary Level

Question:Do general standards exist for exempt employees in regards to

extra work above and beyond the normal work week? For example, if they travel during the weekend for work, is it

expected that they would get a day off later in compensation for this weekend work?

UIC does not expected that an exempt employee receive a day off work after working on a Saturday

or Sunday. Exempt employees are expected to work when duty calls.



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Deductions from Pay

Question:What are the rules for deducting pay for violating

safety rules?

Deductions from pay of exempt employees may be made in certain circumstances. One includes penalties imposed in

good faith for infractions of safety rules of major significance. These include infractions relating to the

prevention of serious danger in the workplace toward other employees. For example (from DOL), includes rules

prohibiting smoking in explosive plants, oil refineries and coal mines



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Deductions from Pay

Question:If we suspend an exempt employee for disciplinary reasons

do we have to pay that person?

Deductions from pay of exempt employees may be made for unpaid disciplinary suspensions of 1 or

more full days, if imposed in good faith for infractions of workplace conduct rules. There must be a written policy applicable to all employees, (e.g.

suspension for violating sexual harassment or workplace violence)



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Salary Deductions

Question:We have an exempt employee out 2 days per week on leave under

the Family and Medical Leave Act (FMLA). Do I have to pay him for the entire week?

No. An employer is not required to pay the full salary for weeks in which an exempt employee takes

unpaid leave under the FMLA.And this is the only time you can deduct actual hours

taken for exempt employees



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Salary Deductions

Question:Can an employer deduct paid benefit leave, such as sick leave or

personal leave, in half-day increments from an exempt employee if it is a written UIC policy?

Yes, you can deduct less than a day’s time from an exempt employee’s allotted sick, vacation, or

personal accrued bank time. You cannot deduct from an exempt employee’s paycheck for less

than a day’s absence for sickness, disability or sick leave.

(Please see policy HRPP 808)2005 B LR Business and Legal Reports


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Salary Level

Question:If an employee needs to be out for a period that is less than a half

day or full day, can the unit require that the employee use leave benefits?

No , the unit cannot require that an employee use half-day or full-day leave benefits if the employee

does not need to be out for that duration.

8/28/06 memo from University HR


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Salary Level

Question:Should employees accumulate or bundle time for multiple absences

to reach the half-day or full-day increments?

NO.Only report usage against leave banks in half or full

day increments for a single day.



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Salary Level

Question:If I am a full time exempt employee, how do I report an

absence that is 5, 6 or 7 hours?

40 hour per week, full time employees should report absences in 4 or 8 hour increments only; therefore

you would report an absence of 5, 6, or 7 hour absence as 4 hours against accrued bank time.



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Salary Level

Question:If an exempt employee calls in sick for a whole day and doesn’t have any accrued sick time on the books, can we

dock her pay for the day?

Yes.As long as the deduction is made in accordance with a

bona fide UIC plan, policy or practice of providing compensation for loss of salary caused by this type of

sickness or disability. Remember though, that you cannot deduct pay for less than 1 day’s absence (even

when the bank is negative)



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Salary Level

Question:If an exempt employee calls in sick for half a day and doesn’t have any accrued sick time on the books, can we

dock her pay for the time?

No. You cannot deduct pay for less than 1 day’s absence

(even when the bank is empty or negative)

DOL Opinion Letter – Jan 7, 2005 = FLSA2005-7


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Overtime

Question:How should managers address issues with employees who

are consistently absent in less than half-day or full-day increments?

Unit managers and supervisors have the right to address performance issues related to attendance if work effort or commitment is unsatisfactory, which

can ultimately lead to discipline and/or termination. Contact the appropriate campus HR office for

assistance in dealing with these situations



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Overtime

Question:Some of our employees work 24 hour shifts, and we allow

them to sleep at night. Are we supposed to pay them for this time?

Sleep time is not considered hours work if it satisfies all of the following:

- EE is on duty 24 hours or more

- EE and ER agree to exclude from work hours bona fide meal periods and a bona fide, regularly scheduled sleeping period of not more than 8 hours

- ER furnishes adequate sleeping facilities and the EE can usually enjoy an uninterrupted sleep period

- The sleep period is uninterrupted. If the EE is awakened and asked to perform work, that time is counted as work; if the EE gets less than 5 hours

of sleep, the entire sleep period must count as hours worked.



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Overtime

Question:At times our non-exempt employees travel to another

worksite past their normal work hours. Do we have to pay them for the time they are driving to the second

site?

Travel to and from work or travel outside of the normal workday is generally not considered compensable. However, exceptions

include (i.e. travel time must be counted if)- Time spent traveling from one worksite to another

- Driving during normal workday to fulfill employer requirements- EE has gone home from the day’s work and is called out again

to travel a substantial distance to do emergency work for a customer



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Overtime

Question:Do we have to pay employees for on-call time?

Yes, if the employee is required to remain on call on the employer’s premises or so close thereto that he cannot use

the time effectively for his own purposes. No, if an employee is not required to remain on the ER’s premises but is merely required to leave word at his home

or with company officials where he may be reached.

DOL 29 CFR 785.17 On call time


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Overtime

Question:Sometimes we offer training to our employees. Since we

are paying for the training, do we have to pay the employee?

Anytime that an employer requires an employee to attend training during work hours, that time will be considered work time. Training is not considered hours worked if all

of the following are met:- Meetings are held outside of work hours

- Employee attendance is voluntary- Training is not directly related to the ee’s job

- Employee does no work during the training time- The course is held after work and is not a requirement

even if the subject matter pertains to the job



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Exemption

Question:Does a bachelor’s degree in the field related to the position

help to support that the position has discretion and independent judgment, and does the DOL look at that

particular element?

You have to review the job duties to determine the level of discretion and independent judgment. Often times, jobs that require a high level of education also

require discretion and independent judgment, but they are 2 separate factors and must be considered

independently from one another.



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Salary Level

Question:What is meant by must exercise discretion and independent

judgment, don’t we all use this in our jobs?

This involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the

various possibilities have been considered. For example, whether the employee has authority to formulate,

affect, interpret, or implement management policies or operating practices, commit the employer in matters that have significant financial impact, negotiate and bind the

company on matters of significance, can waive or deviate from policy without prior approval, etc.

DOL 29 CFR 541.202


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Salary Level

Question:Is keeping a log sheet for exempt employees to sign in and

out as they arrive and leave the office legal if mandated by the employer?

Yes, it’s legal.. Remember though, you’re not tracking hours



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Overtime

Question:Can employers “make” non exempt employees work

overtime?

Under FLSA, there are no maximum hour limitations (e.g. restrictions on the number of hours an

employee may work in one workday, workweek, or work period) for adult employees. The Act merely

requires overtime pay for the time worked in excess of 40 hours per week

SHRM Legal Report , June 2206


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Deductions

Question:Can employers deduct money owed to the company

from non-exempt employee’s paychecks?

Under the FLSA, the applicable minimum wage must be paid to employees free and clear except that deductions are

permitted for the reasonable cost of fair value of board, lodging or other facilities. Deductions for items other than

facilities are permitted so long as they don’t reduce the employee’s wage below the minimum and the employer does not directly, or indirectly derive any profit or benefit

from the transaction. See state law

SHRM Legal Report , June 2206

november 2008 s 1uic hr compensationconfidential commitment * customer service * competence *...

Documents

employee overtime

exempt employee

customer service

overtime payment

legal reports

introduction slide

certain employee groups

hourly basis