FAIR LABOR STANDARDS ACT OVERTIME PROVISIONS

TIME WORKED ALL time worked is compensable. Do not differentiate between time worked on shift, after the end of shift, court time, special details, or caring for a canine. Employees cannot “volunteer.” If an employee works, you must pay. Fringe benefit time does not have to be counted as “time worked.”

Work Periods Not the same as “Pay Periods” For non-public safety, work period is seven days (one week) Public Safety: Any time period between seven days and 28 days. One week, two week, or four week.

OVERTIME THRESHOLD For non-police officers, the overtime threshold is 40 hours for a one week work period. For police officers, the overtime threshold is: 43 hours for one week 86 hours for two weeks 171 hours for four weeks

OVERTIME THRESHOLD Fire Departments: 28 days: 212 hours 14 days: 106 hours (80 hours) 7 days: 53 hours (40 hours)

OVERTIME Employer must compensate at 1½ times the normal rate of pay for all hours worked in excess of the “overtime threshold.” 50% premium May be money or compensatory time The work period is independent of the pay period.

HOW WORK PERIODS IMAPCT OVERTIME EMPLOYEE IS SCHEDULED TO WORK 40 HOURS PER WEEK: That employee works six extra hours in week one (46 total) in one week and 40 hours the next. Week One: Three hours over the overtime threshold Week Two: No hours over the threshold

HOW WORK PERIODS IMAPCT OVERTIME Week One Worked 46 hours Three hours over the threshold Pay three hours at ½ times the normal rate Week Two Worked 40 hours No overtime

HOW WORK PERIODS IMAPCT OVERTIME EMPLOYEE IS SCHEDULED TO WORK 40 HOURS PER WEEK: That employee works six extra hours in week one (46 total) in one week and 40 hours the next. If on a two-week work period, the total number of hours worked is 86 hours. Pay is for 86 hours, no overtime.

HOW WORK PERIODS IMAPCT OVERTIME Week One Worked 46 hours Week Two Worked 40 hours Total hours worked in work period: 86 hours. The threshold for two week work period is 86 hours. There were no hours worked in excess of the overtime threshold

HOW WORK PERIODS IMAPCT OVERTIME EMPLOYEE IS SCHEDULED TO WORK 40 HOURS PER WEEK: That employee works ten extra hours in week one (50 total) and takes 40 hours of vacation in week two. If on a two-week work period, the total number of hours worked is 50 hours. Pay is for 50 hours , plus 40 hours vacation, no overtime.

HOW WORK PERIODS IMAPCT OVERTIME Week One Worked 50 hours Week Two Took 40 hours of vacation Total number of hours worked: 50 hours Employee receives pay for 50 hours (no overtime) plus 40 hours of vacation pay

Compensation The overtime premium is 50% of the hourly rate (the hourly rate plus the overtime premium = “time and a half) Overtime can be compensated with cash (paycheck) or “compensatory time.”

COMPENSATORY TIME Comp time can be given in lieu of cash. Comp is 1½ times the number of overtime hours worked. Comp time must be documented and can accrue. Federal limit is 480 hours for police and fire. City can set lower limit, but any hours in excess of the limit must be paid.

COMPENSATORY TIME If the employee leaves, all accrued comp time must be paid for at the employee’s current rate of pay. Comp time cannot be taken away. It must be taken off or paid for. The employer may require the employee to take comp time.

CANINE Time spent caring for a canine or training counts as compensable time. You control the amount of time spent performing those tasks by policy. The amount of time allowed must be “reasonable.” Some courts have ruled that 30 minutes per day is reasonable.

CONTROLLING CANINE TIME Establish policy defining the amount of time the officer can spend caring for the dog Make allowances for emergencies Require advance permission for extra non- emergency work. Require canine care be done on-duty when possible (allow the officer a certain amount of time to care for the animal at home during the shift.)

EXEMPT versus NON-EXEMPT Employees not subject to overtime are “exempt from overtime.” Employees who are subject to overtime are “non- exempt.” This is not quite the same as “hourly versus salary”. Some salary employees can still be “non-exempt.”

SALARY versus HOURLY An hourly employee is compensated based on the number of hours actually worked. A salaried employee is compensated for a specific number of hours or for the job performed. If the employee is non-exempt, overtime must be paid when the employee’s hours exceed the overtime threshold. The salaried employee’s salary must be converted to an hourly rate to determine the overtime rate.

WHAT IS EXEMPT? NEW (12/1/2016) $913.00 per week or $47,476.00 Minimum salary: $455.00 per week $23,659.92 per year NEW (12/1/2016) $913.00 per week or $47,476.00 Executive exemption Administrative exemption Professional exemption

EXECUTIVE EXEMPTION Minimum salary Primary duty to manage department or subdivision Customarily directs the work of two or more employees Has authority to hire or fire employees, or whose recommendations for hiring, firing, promotion, etc., are given particular weight.

ADMINISTRATIVE EXEMPTION Minimum salary Performance of office or non-manual work in management or operations of the employer or employer’s customers Primary duty includes exercise of of discretion and independent judgment to matters of significance.

PROFESSIONAL EXEMPTION Minimum salary Primary duty includes performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction

LAW ENFORCEMENT Generally, law enforcement officers are specifically NOT exempt, when their duties include: Detection or prevention of crime Investigations Inspections for violations of laws Restraining, detaining or apprehending suspects Interviewing witnesses Cont.

Continued… Interrogating and fingerprinting suspects, preparing investigative reports, Or other similar work

DISCRETIONARY DUTIES If 50% or more of an employee’s duties include line level work, the employee is non-exempt. However, if the employee has discretionary authority to decide whether he/she will perform line level work, the employee can still be exempt.

VERY SMALL POLICE and FIRE DEPARTMENTS Any department with fewer than five total employees is exempt from the overtime provisions. The total number includes the chief and any part- time officers. The number does not include volunteer officers. The number does not include support personnel.

Rex Barton rex.barton@tennessee.edu (423) 506-0402