CITY OF NEW LONDON Fair Labor Standards Act (FLSA) Overtime Compensation Policy

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1 CITY OF NEW LONDON Fair Labor Standards Act (FLSA) Overtime Compensation Policy Issue Date: Revision Update(s): January 13, 2009 September 10, 2013 Policy Source: Cities and Villages Mutual Insurance Company Department of Labor, Wage and Hour Division Special Instructions: Review annually for law and or court interpretation changes. Total Pages: 7 PURPOSE To define the Fair Labor Standards Act (FLSA) exemptions as applied by the City of New London, and to define the procedures, accrual and use of overtime compensation and compensatory time, in addition to defining the procedures for payroll deductions pursuant to the Fair Labor Standards Act. POLICY The Fair Labor Standards Act (FLSA) was enacted by the United States Congress in 1938 and sets the minimum wage, overtime pay, equal pay, recordkeeping, and child labor standards for employees who are covered by the act. Additionally, the FLSA classifies employees into two main categories: exempt and non-exempt, which determine what positions should be paid overtime. A. Overtime Compensation 1. Non-Exempt Employees Employees are covered by the Fair Labor Standards Act (FLSA) and considered nonexempt unless their position meets one of the exempt definitions noted under E. Exemption Determination Tests and the activities directly and closely relate to such work. In order to comply with the FLSA, non-exempt employees will be paid overtime compensation [at least one and one-half times the regular rate of pay] for all hours worked in excess of forty (40) in a workweek. In order to receive overtime compensation, the employee must be suffered or permitted to work. a. All hours worked does not include, for example, holidays, vacations, sick leave, or bona fide meal periods (breaks longer than 20 minutes, where the employee is completely relieved from duty). b. To suffer or permit to work means that if the City requires or allows employees to work, the time spent is generally hours worked. Thus, time spent doing work not requested by the City, but still allowed, is generally hours worked, since the City knows or has reason to believe the employees are continuing to work and the City is benefiting from the work being done, commonly referred to as working off the clock. 2. Exempt Employees The City positions that qualify as exempt are exempt from the FLSA. Overtime compensation is therefore not paid for hours worked. These positions include but not 1 C:\Documents and Settings\missyk\Local Settings\Temporary Internet Files\Content.Outlook\24SP07E0\FLSA

2 limited to: City Administrator, Police Chief, Parks & Recreation Director, Director of Public Works, Finance Director, City Clerk, Cemetery Superintendent, Library Director, Museum Director, Mapping/Media Specialist, and Building Inspector. Employees designated as exempt are not eligible to earn or use compensatory time. However, when an exempt employee has worked a considerable number of hours over and beyond the regular and expected hours in their work week, the employee s Department Director may authorize the employee time off with pay. The time off should not be an hour off for each hour worked beyond 40 hours in a work week. 3. Overtime Utilization Overtime hours worked by City employees will be held to a minimum, consistent with the needs of the municipality and service to all citizens. Each department shall be responsible for utilizing other alternatives prior to assigning overtime to employees. Overtime work should only be authorized in the event of an emergency or when service demands result in no other reasonable alternative. Careful oversight should be exercised by managers who authorize overtime work. 4. Working Time Limitations All non-exempt employees are required to abide by the following: a. Work shall not be engaged preceding or following an employee s scheduled hours of work, unless directed to do so by their supervisor. b. Work shall not be taken home or engaged in at home unless directed to do so by a supervisor. c. Work shall not be engaged during any lunch period except at the direction of the employee s supervisor, unless the lunch period is treated as paid time in accordance with City regulations and/or a collective bargaining agreement. d. All hours worked shall be documented on employee s time cards or worksheet, and shall be verified with the employee s signature. e. All supervisors are responsible for reviewing and signing employee s time cards to verify accuracy. An employee will be notified of any change on their time card after the time card is submitted for processing. B. Compensatory Time As added flexibility for state and local governments, the FLSA authorizes compensatory time (comp time) off in lieu of monetary overtime compensation at a rate of not less than one and one-half hours of compensatory time for each hour of overtime worked. 1. Non-Exempt Employees Each non-exempt employee approved to receive compensatory time may accumulate FLSA overtime credit of not more than 240 hours. Non-exempt employees must be paid for FLSA overtime worked in excess of this limit. Each non-exempt employee engaged in a public safety activity, an emergency response activity or a seasonal activity may accumulate FLSA overtime credit of not more than 480 hours and must be paid for FLSA overtime worked in excess of this limit. Police employees should consult with their supervisor or labor contract for actual limits to compensatory time accumulation, which may be less than allowed under the FLSA. Compensatory time policy for police employees is set by the Police & Fire Commission. 2 C:\Documents and Settings\missyk\Local Settings\Temporary Internet Files\Content.Outlook\24SP07E0\FLSA

3 2. Utilization of Compensatory Time City managers should encourage and/or permit their staff to take their compensatory time as soon after it is earned as possible. The use of compensatory time must be scheduled so as not to disrupt the work in the department. Compensatory time accrued in a non-exempt position for FLSA overtime worked and not used will be paid out on a yearly basis with the first paycheck of the following year. Any comp time earned within the last 2 work weeks of the year may be carried over into the new year. Compensatory time accrued in a non-exempt position for FLSA overtime worked must be paid upon termination of employment. D. Recordkeeping Requirements 1. Non-Exempt Employee Records The following records are required (per 29 CFR and DWD Wisconsin Administrative Code) to be maintained for non-exempt employees: a. Name in full (as used to for social security recordkeeping purposes); b. Home address; c. Date of birth; d. Sex and occupation; e. Date of entering and leaving employment; f. Time of day and day of week on which the employee s workweek begins; g. Starting time and length of each employee s work period [for sworn policy and fire employees only, who are employed under 207(k) of the FLSA]; h. Hours worked each workday and total hours worked each workweek; i. Time of beginning and ending of meal periods if employees meal periods are required or such meal periods are to be deducted from work time [this requirement shall not apply when work is of such a nature that production or business activity ceases on a regularly scheduled basis]. j. Regular hourly rate of pay for any workweek in which overtime compensation is due [the basis for and exclusions from the regular rate must be explained]; k. Total daily or weekly straight-time earnings or wages due for hours worked during the workday or workweek; l. Total premium pay for overtime hours; m. Total additions to, or deductions from, wages paid each pay period; n. Total wage paid each pay period; o. Date of payment and the pay period covered by payment; p. Total compensatory hours earned, and used, each workweek or work period for each employee; q. Number of hours of compensatory time paid in cash, including the total amount paid and the date of payment; r. Any oral or written agreement regarding the earning and utilization of compensatory time off (i.e. collective bargaining agreement or other written understanding). 2. Exempt Employee Records The same records as indicated above, with the exception of the records relating to payment and hours worked (j. m.), must be kept for exempt employees. Additionally, 3 C:\Documents and Settings\missyk\Local Settings\Temporary Internet Files\Content.Outlook\24SP07E0\FLSA

4 records must be kept that detail the basis on which employees are paid (Monetary amount paid, expressed as earnings per hour, per day, per week, etc.). 3. Record Preservation The following records shall be preserved by the City/ for three years: a. Payroll records; b. Certificates, collective bargaining agreements and individual contracts; c. Sales and purchase records. The following records shall be preserved by the City/ for two years: a. Employment and earnings records; b. Wage rate tables; c. Order, shipping and billing records; d. Records of additions to or deductions from wages paid. E. Exemption Determination Tests The following definitions are provided by the federal Fair Labor Standards Act for employment classifications exempt under the Act that are applied by the City of New London. A. Exempt Executive (must meet all of the following requirements): 1. $455 minimum weekly salary. 2. Primary duty of managing an enterprise or a customarily recognized department or subdivision of the enterprise. 3. Customarily and regularly direct the work of at least two other full-time employees or their equivalent. 4. Has authority to hire or fire other employees, or have their suggestions and recommendations regarding the hiring, firing, advancement, promotion or any other change of status of other employees be given particular weight. a). Primary duty is the principal, main, major or most important duty that the employee performs. Determination of an employee s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee s job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee s relative freedom from direct supervision; and the relationship between the employee s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. b). Management refers not only to supervising individuals, but also the management of processes, projects and contracts in addition to employees, and includes, but is not limited to: interviewing, selecting and training employees; setting and adjusting their rates of pay and hours of work; planning and directing the work of others; maintaining sales or production records; appraising worker productivity with respect to recommending promotion or other change in status; handling complaints and grievances; disciplining employees; determining techniques, materials and equipment to be used; determining supplies, equipment and tools to be purchased; providing safety and security for employees or property; planning and controlling the budget; monitoring or implementing legal compliance measures. 4 C:\Documents and Settings\missyk\Local Settings\Temporary Internet Files\Content.Outlook\24SP07E0\FLSA

5 c). Customarily recognized department or subdivision is intended to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function. A customarily recognized department or subdivision must have a permanent status and a continuing function. d). Customarily and regularly means a frequency that is greater than occasional but which may be less than constant. Tasks or work performed customarily and regularly include work normally and recurrently performed every workweek, but no isolated or one time tasks. e). Particular weight. Factors to be considered in determining this include: (1) whether it is a part of the employee s job duties to make such recommendations, and (2) the frequency with which such recommendations are made, requested and relied upon. B. Exempt Administrative (must meet all of the following requirements): 1. $455 minimum weekly salary. 2. Primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the City/Village or the citizens; and includes the exercise of discretion and independent judgment with respect to matters of significance. a). Directly related to management or general business operations requirement means an employee must perform work directly related to assisting with the running or servicing of the City/Village, as distinguished, for example from working on a manufacturing production line or selling a product in a retail or service establishment. Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, Internet and database administration; legal and regulatory compliance; and similar activities. b). Exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct and acting or making a decision after consideration of the possibilities. The term must be applied in the light of all the facts involved in the employee s particular employment situation, and implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignment in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval and other factors set forth in the regulation. The fact that an employee s decisions are revised or reversed after review does not meant that the employee is not exercising discretion and independent judgment. The exercise of discretion and independent judgment must be more than the use of skill in applying well established techniques, procedures or specific standards described in manuals or other sources. 5 C:\Documents and Settings\missyk\Local Settings\Temporary Internet Files\Content.Outlook\24SP07E0\FLSA

6 C. Exempt Learned Professional 1. $455 minimum weekly salary. 2. Primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment. 3. The advanced knowledge must be in a field of science or learning, and must be acquired by a prolonged course of specialized intellectual instruction. a). Work requiring advanced knowledge means work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment. Professional work is distinguished from work involving routine mental, manual, mechanical or physical work. A professional employee generally uses the advanced knowledge to analyze, interpret or make deductions from varying facts or circumstances. Advanced knowledge cannot be attained at the high school level. b). Field of science include occupations that have a recognized professional status as distinguished from the mechanical arts or skilled trades where is some instances the knowledge is of a fairly advanced type, but is not in a filed of science or learning. Traditional professions as fields of science or learning include law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, and pharmacy. c). Customarily acquired by a prolonged course of specialized intellectual instruction : This exemption is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best evidence of meeting this requirement is having the appropriate academic degree. However, the work customarily means the exemption may be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction. This exemption does not apply to occupations in which most employees acquire their skill be experience rather than be advanced specialized intellectual instruction. D. Exempt Highly Compensated Employee 1. Total annual compensation of at least $100, Primary duty must include performing office or non-manual work. 3. Regularly and customarily performs one or more exempt duties: performance of office or non-manual work directly related to the management or general business operations of the City/Village or the citizens or includes the exercise of discretion and independent judgment; performance of work that requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction. a). Total annual compensation must include at least $455 per week paid on a salary or fee basis, and may also include commissions, nondiscretionary bonuses and other nondiscretionary compensation earned during a 52-week period. E. Exempt Computer Employee 1. $455 minimum weekly salary OR $27.63 minimum hourly salary paid for every hour worked, including overtime. 6 C:\Documents and Settings\missyk\Local Settings\Temporary Internet Files\Content.Outlook\24SP07E0\FLSA

7 2. Primary duty must consist of: the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of the aforementioned duties, the performance of which requires the same level of skills. 3. Employees covered by this exemption include: computer system analysts, computer programmers, software engineers and other similarly skilled workers in the computer field. 4. Computer employees are not eligible under the highly compensated employee tests. F. Exempt Recreational Employee 29 U.S.C. 213(a)(3) exempts any employee who is employed by an establishment that is an amusement or recreational establishment, organized camp, or religious or nonprofit educational conference center, if (a) it does not operate for more than seven months in any calendar year, OR (b) during the preceding calendar year, its average receipts for any six months of the year were not more than 33 1/3 percent of its average receipts for the other six months of that year. Examples of facilities that may satisfy the first prong of the above test and qualify for this exemption include: swimming pools, public golf courses, seasonal parks and stadiums, concessions at amusement parks and beaches, certain summer camps and some seasonal recreational programs. 7 C:\Documents and Settings\missyk\Local Settings\Temporary Internet Files\Content.Outlook\24SP07E0\FLSA

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