The Fair Labor Standards Act (FLSA) determines whether a position is eligible for overtime pay. There are two types of employment under the FLSA, exempt and nonexempt.
Employees that are nonexempt must be paid or granted compensatory time, both at the premium rate (an employee's regular hourly rate times 1.5), for all hours worked that exceed 40 hours in a work week.
Exempt positions are considered salaried positions and do not normally receive additional compensation for overtime work without approval from the Office of Human Resources.
This policy provides direction for granting overtime compensation to nonexempt employees. In all cases, overtime pay or compensatory time should be held to a minimum consistent with the needs of the university.
All nonexempt employees as defined under the Fair Labor Standards Act (FLSA), regardless of UW–Madison employee category. For example, this may include University Staff, Temporary Employees, Academic Staff, or Limited employees.
The employing unit will designate positions or employees as exempt or nonexempt following the duties test of the FLSA with final review by the Office of Human Resources (OHR).
Except for law enforcement officers, FLSA nonexempt employees must be paid at a premium rate or receive compensatory time credits at a rate of 1.5 hours per hour worked in excess of 40 hours in a work week. Law-enforcement officers may be paid at a premium rate or receive compensatory time credits at a rate of 1.5 hours per hour worked in excess of 80 hours in a two-week pay period.
The work is in a different occupational category from any capacity in which the employee is regularly employed.
Occupational categories will normally be considered “different” if the first three digits of the occupational codes used in the Dictionary of Occupational Titles are different. For example:
The Fair Labor Standards Act (FLSA) gives public employers the option of providing employees with compensatory time off in lieu of cash for overtime as long as the employee has received notice of the compensatory time option. Each Division has the authority to decide whether to provide compensatory time in lieu of cash for FLSA overtime and for non-FLSA overtime (such as for hours worked on a holiday) for FLSA nonexempt staff.
The University of Wisconsin System is considered one employer under the FLSA. If an individual has more than one appointment, a FLSA review that includes the entire UW System employment must be performed to determine exemption status for all positions.
Determining overtime compensation for nonexempt employees.
All hours worked at UW–Madison must be totaled in each work week or work period to determine if any overtime is worked. The employee and the division may agree before work is performed that the employee will be paid the premium rate for the position in which overtime hours are worked. Unless such an agreement is reached, overtime pay must be calculated based on the total employment situation at UW–Madison.
The U.S. Department of Labor may assess fines for failure to comply with the provisions in this policy.
|Office of Human Resources (OHR)||
Note: Activities that are always considered work time or non-work time under the FLSA are designated with an “X” in the following table. [Reference 29 C.F.R. Part 785, Ch. DWD 272, Wis. Adm. Code]
|Activity||Work Time||Non-Work Time|
|Changing Clothes||If the employee is required to change before and after their shift, is not allowed to take the clothing home and is not required to launder it at home||If the employee is provided a uniform that can be worn to and from work and the employee is responsible for laundering|
|Charitable Work||If requested or controlled by the employer||If done voluntarily outside working hours|
|Compensatory Time Credits Used||X|
|Meal Periods and Rest Periods||When the employee is not completely relieved from active or inactive duties or when the meal period is less than 30 minutes, or when the employee is not permitted to leave the employer's premises.||Periods of 30 minutes or more when the employee is completely relieved from duty for the purposes of eating regular meals. The employee does not have to leave the premises to be considered relieved from duty|
|Medical Attention||During normal work hours for matters that are job-related and at the employer’s discretion||Medical attention for matters that are not job-related|
|Residing on Premises||When not on duty|
|Sleep Time||When the employee is required to be on duty for less than a straight 24-hour period||Not to exceed eight hours, where an employee is required to be on duty 24 hours or more, is furnished adequate sleeping facilities and can usually enjoy at least five hours of uninterrupted sleep. (Note: It is necessary that employer and employee agree that this is not work time.)|
|Tools||Caring for tools and machinery if part of the principal duties|
|Training - General||Attendance is mandatory by the employer
Attendance is outside of the regular work hours if the employee understands or is led to believe that the employee’s present working conditions or continuance of employment would be adversely affected by nonattendance
|If all of the following criteria met:
|Training – Job Related||X|
|Training – Career Related||See Training – General||See Training – General|
|Travel – Home to Work||
|Travel – Overnight (When it Cuts Across the Employee’s Work Day)||Only the time spent in travel during the hours of the regular work day, excluding meal time.||Time spent in overnight travel away from home outside of regular working hours.|
|Travel – Overnight (Not on a Regularly Scheduled Work Day)||Travel time during what would normally be the work hours on a regular work day.||Time spent in overnight travel away from home outside of regular working hours.|
|Travel – Overnight (Public Transportation Offered)||If offered public transportation but the employee requests permission to drive the employee’s car, only actual time spent in travel during the regular work hours or time which would have been spent if public transportation had been used, whichever is less.||Time spent in overnight travel away from home outside of regular working hours.|
|Travel – Work site to Work site||Time spent by an employee in travel, as part of the employee’s normal activities during the workday, from work site to work site.|
|Unauthorized Work||Hours worked by an employee without the employer’s permission or contrary to the employer’s instructions may be considered hours worked, depending on the specific situation.|
|Waiting Time||Unpredictable short periods of inactivity when the employee is unable to use the time effectively for the employee’s own purposes even though the employee may be allowed to leave the work site. (Examples: Standby time during lunch periods and work shutdowns.)||
|Washing Up||If required by the nature of the work.||If for the employee’s convenience.|
Chart Guide to Determining Hours Worked (See Appendix 1)