1. Compensable Hours Worked by FLSA Nonexempt UW System Employees Office of Human Resources and Workforce Diversity

2. TABLE OF CONTENTS What is the FLSA? What is changing? Who will the change affect? Compensatory time What constitutes “hours worked” for nonexempt employees? Summary Questions

3. FLSA The Fair Labor Standards Act (FLSA) of 1938 is the US federal wage and hour law. Establishes the minimum wage and overtime pay. Everyone is “covered” but some employees are exempt from FLSA regulations and some are nonexempt (hourly). The FLSA requires that 1.5 times the regular rate of pay in overtime or compensatory time be paid for all hours worked over 40 in a workweek for nonexempt employees.

4. WHAT IS CHANGING? The US Department of Labor (DOL) is increasing the minimum salary threshold. Employees with salaries above the threshold may be designated as exempt. The minimum salary threshold will be raised to the 40 th percentile of weekly earnings for full-time salaried workers in the lowest wage Census region, which would be $913 per week or $47,476 per year. The effective date is December 1, 2016.

5. WHO WILL THE CHANGE AFFECT? If an employee’s rate of pay is below the new minimum salary level, that employee must be nonexempt unless he or she qualifies for an exception. Some exempt university staff and noninstuctional academic staff will become nonexempt because their salaries will be below the new threshold. Academic staff that become nonexempt will become hourly academic staff. Faculty and instructional academic staff whose primary duties are teaching are exempt regardless of their salaries.

6. COMPENSATORY TIME Under UPS Operational Policy TC 3: Compensation, nonexempt UW System employees may receive compensatory time off, at a rate of 1.5 hours for each overtime hour worked, instead of cash overtime pay. If a UW System institution has agreed to allow employees to receive comp time – and if an employee elects to receive comp time – an employee may accumulate up to 80 hours of compensatory time. The institution will have discretion to approve scheduled use of compensatory time.TC 3: Compensation

7. WHAT CONSTITUTES “HOURS WORKED” FOR NONEXEMPT EMPLOYEES? Compensable time under the FLSA is referred to as “hours worked.” The amount of pay that a nonexempt employee should receive cannot be determined without knowing the number of hours worked.

8. HOURS WORKED BY NONEXEMPT EMPLOYEES Nonexempt employees must be paid at premium rate or receive compensatory time credits at a rate of 1.5 hours per hour worked over 40 in a workweek. The workweek ordinarily includes all time during which an employee is required to be at work. “Hours worked” do not include hours of paid leave time. Compensable hours worked are the same for nonexempt university staff and nonexempt academic staff. Nonexempt is nonexempt.

9. HOURS WORKED BY NONEXEMPT EMPLOYEES Waiting Periods DWD 272.12 (2)(b)DWD 272.12 Work Time. Unpredictable short periods of inactivity when the employee is unable to use the time effectively for his or her own purposes.

10. HOURS WORKED BY NONEXEMPT EMPLOYEES Waiting Periods DWD 272.12 (2)(b)DWD 272.12 Nonwork Time. Periods of inactivity where the employee knows in advance that he or she may leave the workplace or when the length of time is long enough (at least an hour) for the employee to use the time to his or her own purpose.

11. HOURS WORKED BY NONEXEMPT EMPLOYEES Meal Periods and Breaks DWD 272.12 (2)(c)DWD 272.12 Work Time. Where the employee is not completely relieved of duties or where the period is less than 30 minutes in length. If the employee eats at his or her desk and listens for the phone it is work time. Breaks of 15 minutes or less are considered work time.

12. HOURS WORKED BY NONEXEMPT EMPLOYEES Meal Periods and Breaks DWD 272.12 (2)(c)DWD 272.12 Nonwork Time. Periods of 30 minutes or more where the employee is entirely relieved of duties for the purpose of a meal.

13. HOURS WORKED BY NONEXEMPT EMPLOYEES Preparatory and Concluding Activities DWD 272.12 (2)(e)DWD 272.12 Nonwork Time. Changing clothes for the employee’s convenience, putting away tools if enough time is already allowed; waiting in line to punch in or punch out or waiting to start work at a designated hour.

14. HOURS WORKED BY NONEXEMPT EMPLOYEES Work at Home DWD 272.12 (2)(a)DWD 272.12 Work Time. Work at home which is permitted but not requested by the employer Nonwork Time. Work done at home of which the employer has no knowledge or no means of acquiring knowledge and work done contrary to the employer’s instructions

15. HOURS WORKED BY NONEXEMPT EMPLOYEES Training Time DWD 272.12 (2)(f)DWD 272.12 (2)(f) Work Time. Attendance at lectures, training programs and similar activities outside of regular work hours must be counted as work time if the employee is led to believe that attendance is mandatory or involuntary.

16. HOURS WORKED BY NONEXEMPT EMPLOYEES Training Time DWD 272.12 (2)(f)DWD 272.12 (2)(f) Nonwork Time. Attendance at lectures, training programs and similar activities which is voluntary, outside of working hours, and not directly related to the employee's job. Training is considered directly related to the job if it is designed to make the employee more effective at his/her present job.

17. HOURS WORKED BY NONEXEMPT EMPLOYEES Travel Time DWD 272.12 (2)(g)DWD 272.12 (2)(g) Work Time. Travel to a meeting place or alternate work location during the normal work day; travel site to site as part of the employee’s normal duties; travel required to go a considerable distance after hours to respond to an emergency; travel to another city or location for a special or unusual one- day assignment.

18. HOURS WORKED BY NONEXEMPT EMPLOYEES Travel Time DWD 272.12 (2)(g)DWD 272.12 (2)(g) Nonwork Time. Travel to and from the employee’s home to the work site; travel required to return to the workplace after hours to respond to an emergency.

19. HOURS WORKED BY NONEXEMPT EMPLOYEES Overnight Travel DWD 274.12 (2)(g)DWD 274.12 (2)(g) Work Time. Travel time that keeps an employee away from home overnight is work time when it cuts across the regular work day. Only hours spent in travel during the regular work day are counted as work time.

20. HOURS WORKED BY NONEXEMPT EMPLOYEES Overnight Travel DWD 272.12 (2)(g)DWD 272.12 (2)(g) If travel is not on a regularly scheduled work day, only those hours that would be work hours on a normal day should be counted. If the employee is offered public transportation and requests to drive a personal vehicle instead, the employer may count the time spent driving, or the time the employee would have spent on the public transportation.

21. HOURS WORKED BY NONEXEMPT EMPLOYEES Work Performed while Traveling DWD 272.12 (2)(g)DWD 272.12 (2)(g) Work Time. Any work which an employee is required to perform while traveling even if it is not during regularly scheduled hours. Nonwork Time. Bona fide meal and sleep periods.

22. HOURS WORKED BY NONEXEMPT EMPLOYEES Remember that an employee may not “volunteer” for his/her employer, to perform extra duties related to his/her job Employees cannot “waive” payment for compensable time

23. HOURS WORKED BY NONEXEMPT EMPLOYEES Examples of Nonwork Time Attendance at a college or trade school after hours on the employee’s own initiative, even if the course is related to the employee’s job. Attendance outside of working hours at specialized or follow up training that is required by law for certification.

24. SUMMARY There is no distinction in timekeeping requirements between nonexempt university staff and nonexempt academic staff Overtime or comp time is earned after 40 hours worked in a workweek and paid time off does not count toward the 40 hours 30 minutes or more for a lunch to be unpaid

25. SUMMARY The employer must pay for any work done by a nonexempt employee of which it had knowledge even if the work was not officially approved. Any work performed by the nonexempt employee which the employer allows and does not affirmatively stop is paid work time.

26. QUESTIONS?