Procedure: Fair
Labor Standards Act
All Department employees are covered by the Wage and Hour provisions of the Federal Fair Labor Standards Act unless specifically exempted. The provisions of the Fair Labor Standards Act include guidance for establishing work periods, payment of minimum wages, hours of work, overtime compensation and required record keeping.
Categories of Employees
Employees who are covered by the Wage and Hour provisions of the Fair Labor Standards Act are considered non-exempt employees.
Exempt employees are not covered by the provisions of the Fair Labor Standards Act because their work assignments fall into one of the following categories:
- Executive
- Professional
- Administrative
Designations of exempt or non-exempt status are made by the Central Office of Human Resources based on criteria established by the Fair Labor Standards Act. Such designations are made on an individual basis and are based on the actual work responsibilities assigned to each employee.
Work Period
The standard Fair Labor Standards Act work period is a fixed period of seven (7) consecutive calendar days. It does not need to coincide with the calendar week and may begin on any day and at any time.
A work period must be established in writing for every employee (both exempt and non-exempt) and must be on file in an accessible location. The work period must define the time of day and the day of the week when the employee’s work period begins and ends. (Example: Friday at 5:00 p.m. to the following Friday at 5:00 p.m.)
An established work period may be changed if the change is intended to be permanent and not for the purpose of avoiding the accrual of Fair Labor Standards Act overtime.
Employees in the same Department organizational unit may have different work periods.
Time WorkedTime worked includes all the time non-exempt employees are required to be on duty at prescribed work places, and all time during which non-exempt employees are “suffered or permitted” to work.
1) Non-exempt employees must be compensated for all time which supervisors know or have reason to know is being worked, not simply the time which non-exempt employees have been required or asked to work.
2) Supervisors are not to ignore work that non-exempt employees do “on their own time”. Non-exempt employees are required to report all time worked.
3) Non-exempt employees who work without authorization are subject to disciplinary action, up to and including separation.
4) In order to avoid the potential for Fair Labor Standards Act overtime, Department employees who are Fair Labor Standards Act non-exempt are not authorized to work for another state agency absent written advance approval from the Department's Central Office of Human Resources.
Meal periods – Although meal periods are not required by the Fair Labor Standards Act, it is the policy of the Department that meal periods be provided to employees unless there are specific work-related reasons for not following meal periods.
1) Meal periods are not considered work time as long as non-exempt employees do not perform any work-related duties for an uninterrupted period of at least 30 minutes.
2) Meal periods should be regularly scheduled based on non-exempt employee’s work assignments and the needs of the organizational unit.
3) Non-exempt employees may not occupy their workstations during meal periods.
Break PeriodsShort break periods are counted as time worked.
Break periods are not required by the Fair Labor Standards Act; however, up to two 15-minute break periods per day may be authorized at the discretion of supervisors, and if work assignments permit.
Supervisors may schedule break periods if determined appropriate within the Department's organizational unit/college, and if work assignments and coverage permits.
Since break periods are work time, non-exempt employees are not authorized to lengthen a meal period, report late to work, or leave early by “working through” a break period.
Meetings or Training
Time spent by non-exempt employees attending meetings, training and similar activities must be counted as time worked, unless all of the following criteria are met:
1) The attendance is outside of non-exempt employees’ regular working hours;
2) The attendance is voluntary;
3) The meeting, training or similar activity is not directly related to the non-exempt employee’s position; and
4) Non-exempt employees perform no work related to their positions while in attendance.
On Call
Non-exempt employees who are not required to remain on the work premises, and are free to engage in personal activities, and are subject to the understanding that the supervisor knows how to reach them, are not working while “on-call”.
1) All time which non-exempt employees spend actually performing work while “on-call” is time worked.
2) If actual calls are so frequent, or the “on-call” conditions are so restrictive that non-exempt employees are not free to use the intervening periods effectively for personal benefit, the time must be considered time worked.
Residents
Non-exempt employees who reside on the Technical College premises either permanently or for extended periods are not considered to be working all of the time they are on the premises. The assumption is that such non-exempt employees may engage in personal activities, including eating, sleeping, entertaining, etc.
1) As a general rule, non-exempt employees who reside on the premises for 120 hours or more in a workweek fall within this rule. Five (5) consecutive day (or nights) residence may also qualify.
2) Any reasonable agreement between the employers and non-exempt employees as to the amount of time worked is acceptable. It is advisable that these agreements be reasonably detailed and in writing.
Travel
Normal travel from home to work and return is not work time. This is true whether the non-exempt employee has a fixed workplace or works at different locations.
1) Travel to work assignments at sites within reasonable commuting distance of the non-exempt employee’s primary work site is considered to be in the “home to work” category and is not work time. If, however, a non-exempt employee is required to stop by the primary work site for instructions or to pick up materials, the travel from the primary work site to the work assignment must be counted as time worked.
2) Travel between a non-exempt employee’s normal work site and another place of assignment, or travel between one assignment and another during the workday, is considered time worked.
3) Travel associated with a one-day assignment at a different location must be considered time worked to the extent that the travel exceeds the time spent in the non-exempt employee’s normal travel between home and work.
4) While the federal Department of Labor normally exempts from overtime computation those hours beyond an employee's normal work schedule spent traveling as a passenger on a train, plane, bus or driving a car to a specific work location, it is nevertheless the policy of the Department to count bona fide travel time of non-exempt employees, other than that which would be required as part of the normal commute, as work time.
5) Exempt employees are not entitled to any overtime compensation for travel time either outside of, or in addition to, their normal hours of work.
6) Required attendance for meal and /or events outside of normal work hours will count as bona fide work hours.
Management of Work Hours
Supervisors are responsible for monitoring arrival and departure times of non-exempt employees to ensure accurate records are maintained and to minimize overtime worked.
Non-exempt employees are normally not allowed to occupy their workstations before their scheduled workday begins, during meal periods, and after the workday ends.
Non-exempt employees are required to accurately sign in and out (recording time to the exact minute) when they arrive and leave their work areas. Non-exempt employees who fail to correctly record actual work time are subject to disciplinary action up to and including separation.
Exempt employees generally do not complete time sheets to record work time. Since exempt employees are paid on a salary basis, time sheets should not be kept unless they are required in order to comply with programmatic certification requirements.
Time worked by non-exempt employees should be reviewed prior to the end of the work period (when possible) to determine if overtime may occur. Non-exempt employee’s work schedules may be adjusted to prevent overtime work.
If a non-exempt employee arrives after the scheduled reporting time, the supervisor may allow the non-exempt employee to adjust the work schedule within the work period to make up the time if tardiness seldom occurs and the adjustment is otherwise determined appropriate. If frequent tardiness occurs, the non-exempt employee should not be allowed to make up the time. The non-exempt employee may be placed on unauthorized leave without pay, placed on an attendance plan, and disciplinary action may be taken.
Non-exempt employees must generally receive prior approval to work overtime. In unique or emergency situations, prior approval may not always be possible. Overtime worked in these instances must be reported to the supervisor as soon as possible. Non-exempt employees may be required to explain why overtime was necessary and why pre-approval was not possible. Whether authorized or not, all overtime work must be accurately and promptly recorded.
Overtime may be granted for emergencies, unanticipated assignments or for special projects that cannot be completed during normal work hours. Overtime should not generally be granted for non-exempt employees when work should be completed during the workday. Supervisors should closely monitor all overtime worked in these instances.
A statement regarding responsibility and accountability for managing the provisions of Fair Labor Standards Act is to be included on Performance Management Forms (PMF) of supervisors who supervise non-exempt employees. These supervisors are to be evaluated on their Performance Management Forms based on compliance with Fair Labor Standards Act.
Non-exempt employees are to be evaluated on their Performance Management Forms regarding adherence to Fair Labor Standards Act requirements.
A method for monitoring all overtime worked should be put in place in every organizational unit/college.
Overtime
If overtime occurs (non-exempt employee actually works more than 40 hours in a work period) the non-exempt employee is to receive time and a half Fair Labor Standards Act compensatory time for the amount of overtime worked. Compensatory time can be provided in lieu of overtime compensation only until the employee accrues 240 hours or, if the employee is engaged in a public safety, emergency response, or seasonal activity, 480 hours. After that total is reached, the employee must be paid an overtime premium. In addition, the employee must be permitted to use the compensatory time “within a reasonable period” and must be compensated for the accrued compensatory time on termination or separation at a rate that is the higher of (1) the average regular rate received by the employee during the last three years of employment; or (2) the final regular rate received by the employee.
NOTE: Fair Labor Standards Act compensatory time is not granted to non-exempt employees who may have been in pay status for more than 40 hours during a work period due to a holiday or use of accrued leave, but who did not actually WORK more than 40 hours. However, non-exempt employees may earn compensatory time on a "straight time" basis for those hours worked beyond 40 hours during which they are in pay status under the Department’s procedures for State Compensatory Time.
Fair Labor Standards Act exempt employees ARE NOT entitled to Fair Labor Standards Act compensatory time for time worked over 40 hours in a work period. In unusual circumstances, when an exempt employee is required to work an extraordinary number of hours, the manager may grant some time off within a reasonable period of time. Time off for exempt employees, however, should not be on an hour for hour basis.
NOTE: In unique or critical circumstances, straight time overtime may be paid to Fair Labor Standards Act exempt employees. Specific approval must be received from the Governor’s Office of Planning and Budget and Office of Commissioner prior to payment for overtime work.
The amount of overtime worked must be reported to the appropriate business office/personnel office for processing payment. Records of time worked must be maintained by the Department organizational unit/college.
Compensatory Time Use and Payment
Non-exempt employees must be permitted to use Fair Labor Standards Act compensatory time within a reasonable period after making the request if in the granting of such time off it will not unduly disrupt the operations of the organizational unit.
Supervisors may require non-exempt employees to take Fair Labor Standards Act compensatory time in before discharging annual leave. Non-exempt employees may discharge owed Fair Labor Standards Act compensatory time before discharging sick leave or personal leave.
Fair Labor Standards Act compensatory time cannot be transferred between state agencies or the Department's organizational units (e.g., from Central Office to Heart of Georgia Technical College). Instead, employees must be paid at the time of transfer for all outstanding compensatory hours. The cost shall be borne by the unit from which the employee is transferring.
Upon termination for any reason, non-exempt employees must be paid for accrued and unused Fair Labor Standards Act compensatory time at the higher of the following rates:
1) The average regular rate received by the non-exempt employee during the last three (3) years of employment; or
2) The final regular rate received by the non-exempt employee.
As monetary payment of overtime to non-exempt employees can be made only in extraordinary circumstances, all managers must make every effort to ensure that no non-exempt employee is scheduled to work so that they acquire in excess of 240 (480 for public safety, emergency and seasonal personnel) hours of overtime.
1) Overtime payments are calculated on an hourly rate by adding the non-exempt employee’s annual salary and supplemental pay, (i.e., shift differential, county supplement, etc.) and dividing the sum by 2,080 hours.
2) Overtime payment is calculated on the rate in effect when the overtime was earned.
Child Labor Laws
In accordance with Federal and State Laws, prospective Department employees under the age of 18 are required to submit an employment certificate to the hiring official prior to commencing work. Employment certificates are issued by county boards of education and private schools.
The type of work that may be performed by employees under the age of 18 is restricted by Federal and State Law. Decisions regarding the provisions of the child labor laws will be made on a case-by-case basis.
Failure to comply with child labor laws may result in the department being fined up to $10,000.00.
The Central Office Human Resource Department must be advised prior to hiring anyone under the age of 18.
Record Keeping
All Fair Labor Standards Act records must be kept for at least three (3) years by the Department organizational unit unless otherwise directed. These records include, but are not limited to:
1) Understanding Concerning Fair Labor Standards Act Compensatory signed by all new employees;
2) Sleep time agreements, if applicable;
3) Work time agreements for residents, if applicable;
4) Written records of employee’s work periods;
5) Records of each non-exempt employee’s daily and weekly time worked signed by the employee and supervisor [See Sample – Department Fair Labor Standards Act Time Record - B and Sample – Department Fair Labor Standards Act Time Record - C for samples;
6) The amount of FAIR LABOR STANDARDS ACT compensatory time accrued by each non-exempt employee during each work period;
7) The amount of FAIR LABOR STANDARDS ACT compensatory time used in each work period by each non-exempt employee; and,
8) The amount paid for FAIR LABOR STANDARDS ACT compensatory time and the basis of payment.
NOTE: For additional information or assistance, please contact the Human Resources Office at the Central Office at (404) 679-1759.
References
Fair Labor Standards Act Compensatory Time Reporting Record
Understanding Concerning Fair Labor Standards Act Compensatory
Sample – Department Fair Labor Standards Act Time Record - A
Sample – Department Fair Labor Standards Act Time Record - B
Sample – Department Fair Labor Standards Act Time Record - C
Created: October 3, 2001