FLSA Questions and Answers
For Exclusively Represented Employees: Please consult respective contracts for current practice.
Q: Are the non-exempt jobs still considered "professional" jobs?
A: The exemption status does not diminish the professional nature and significance of any job at the University. It is simply a legal designation for pay purposes. The University considers all employees as "professionals" and emphasizes appropriate job classifications, merit pay, performance incentives, and professional development.
Q: Is the FLSA status (exempt/non-exempt) determination considered final or can determinations be appealed or changed based upon management comment?
A: The FLSA status has been determined for each title. Individual positions require analysis by Human Resources to ensure that each is assigned to the appropriate classification and FLSA exemption status.
Q: Are departments required to pay premium overtime to "non-exempt" employees who work over 40 hours a week, or do departments have the discretion to provide compensatory time off?
A: Under provisions of the FLSA, an employee's acceptance of compensatory time off in lieu of pay for premium overtime is entirely voluntary. Unless a specified agreement has been reached with the employee's collective bargaining representative, a compensatory time agreement form must be signed before overtime work is assigned to an employee. Refer to section on Compensatory Time Off Agreements for Non-Exempt Employees and relevant articles in Collective Bargaining agreements for concise information.
Q: California Wage and Hour Law regarding the payment of overtime was recently changed. The law now requires that overtime be paid at the rate of time and one-half for time worked in excess of eight (8) hours per day. How does this affect non-exempt UC employees?
A: UC policies and union contracts were written to conform to federal overtime laws regarding payment of overtime as provided under the FLSA. Generally, the University of California is not subject to the California Wage and Hour Laws. Therefore, this revised state overtime law has no impact on non-exempt UC employees.
Q: Can "Exempt" employees work part-time?
A: Yes, but the part-time employee must also be compensated on a salaried basis. For example, if an exempt employee has a 50% appointment, he/she would be paid at 50% of the established monthly rate. The workload should be adjusted as appropriate.
Q: Will variable time appointments be allowed to continue for exempt employees?
A: Although policy will not prohibit variable time appointments, a department must appoint an employee on a fixed percentage of time and pay on a salaried basis to retain an employee's exempt status. The preferred approach would be to appoint an exempt employee at 100 percent or some lesser percentage appointment, understanding that, as an exempt employee, the individual is expected to work whatever amount of time is required to fully accomplish assigned duties. To be exempt, no hourly pay records can be maintained for purposes of receiving salary.
Q: If a non-exempt employee works overtime without obtaining prior approval from his/her supervisor, is the department obligated to compensate premium overtime?
A: Yes. Overtime must always be authorized in advance by the supervisor. However, it still accrues as a liability when the employee works overtime and the supervisor knows or "should have known" that the work was performed and did nothing to stop it from occurring. Corrective action may be appropriate against the employee for not following department procedure.
Q: If a non-exempt employee works through the lunch hour, should that time be considered overtime?
A: Yes, it is considered overtime if working through the lunch hour results in the employee working more than 40 hours in that workweek. Again, overtime must always be authorized in advance by the supervisor, including work done during the lunch hour.
Q: Can exempt employees be asked to sign a timesheet or time record?
A: Yes. The exempt employee can be required to record the negative time or exceptional time that was used during a pay period. In other words, the exempt employee is indicating when they used vacation, sick leave, or personal unpaid leave in one-day increments.
Q: Can detailed records be kept for exempt employees for purposes other than compensation or salary?
A: Yes. Detailed records to the quarter hour can be kept for employees who charge a percentage of their salary to various grants or who are working on a number of accounts and the work charged to each account varies, or for other purposes, such as management reports, as long as the recording of time does not relate to pay.
Q: Can exempt employees be compensated for being on-call or for carrying a beeper?
A: No. Exempt employees may be required to be on-call or to carry a beeper but no additional compensation may be provided.
Q: Since exempt employees' time is not rigidly controlled, how do I address issues of work time and work absences?
A: You should discuss with the exempt employees the expectations of the position, including the need to be present in order to perform work that is essential to the unit's operations or the need to arrive by a certain time in order to assure that the workplace is properly staffed for business. Discussions should focus on the responsibilities of the exempt employee and how those expectations relate to time spent at work.
You may also discuss your expectation that the exempt employee needs to be present during certain days of the week in order to attend meetings, meet pre-determined deadlines, and to consult with his/her colleagues.
Q: What if the exempt employee fails to maintain the schedule discussed above or fails to be present during crucial times of the year?
A: You may then need to formally counsel or warn the employee about his/her failure to meet the performance expectations of the position. Ultimately, an employee could be dismissed for his/her failure to be present since the employee, if not present, cannot perform the duties of the position in order to meet the University's business needs.
Q: May I require an exempt employee to inform me when he/she intends to be absent from the campus for several hours during a typical work day?
A: You may certainly ask any employee to inform you if they will not be at work during some hours of a typical work day. The information is necessary so that others who need to coordinate with that employee can be informed of the work schedule. It is also common courtesy. If an employee fails to keep you informed, you may discuss the matter with the employee, emphasizing the performance-related aspects of the employee's failure to keep you informed.
Q: Do either exempt or non-exempt employees count travel time as time worked?
A: Exempt employees will not count travel time as time worked. For non-exempt employees, certain travel time can be considered hours worked as explained in Personnel Policies for Staff Members, Policy 31.B.4 - Travel Time. Because there is a potential for a number of variables, contact your Human Resources Consultant with specific circumstances.
Q: How best can a department ensure that non-exempt employees aren't working at home? through lunch? after hours?
A: To avoid overtime claims for work at home, managers must communicate and may document in writing that overtime for home work will not be permitted. However, even if such notice has been made, acceptance of work done at home creates an overtime liability under the FLSA and the employee must be appropriately compensated for the time. The same holds true for employees who work through their lunch hour or work before and after their shift. Management must clearly state that overtime must be approved prior to being worked and, if an employee works, compensate for it and initiate progressive discipline. Contact your Human Resources Consultant for more information
Q: Is professional development (e.g., reading at home, weekend classes, etc.) that is necessary to maintain a license or certification considered time worked?
A: For exempt employees, professional development activities outside of working hours are not considered time worked. For non-exempt employees, such activities outside of working hours may be considered time worked, for example, if mandatory or required for professional licensing or certification - and if agreed to in advance of the activity by management. Contact your Human Resources Consultant with specifics to determine if training and development activities should be compensated as time worked.
Q: Can an employee change his/her mind once the Compensatory Time Off Agreement has been "served" and the terms become a condition of employment?
A: Normally, conditions of employment do not change frequently. Accordingly, it is intended that the CTO agreement will be binding for a significant period of time. Any future change will require agreement between department management and the employee.
Q: If an exempt employee has 2 hours sick leave balance and is absent for 8 hours, can you reduce the sick leave balance to zero? Do you pay the employee for the full day? Do you dock salary for 6 hours?
A: Reduce the sick leave bank to zero and dock salary for 6 hours. It is permissible to combine deductions from both salary leave banks - but only for full-day absences. The key point is that the exempt employee was absent for a full day. Absences of less than a full day should not result in any leave bank or salary docking for exempt employees.
Q: May exempt employees combine sick leave hours and vacation hours to cover an 8-hour absence?
A: This answer applies to both exempt and non-exempt employees. Accrued vacation hours may be applied to absences due to illness with your supervisor's approval; however, University policy PROHIBITS applying accrued sick leave hours to vacation absences. (If combined docking of leave balances and salary are used, be sure to note that it was based on a full day's absence in the records for exempt employees. During an audit, this recordkeeping will confirm that the employee was absent for a full day.
Q: When an exempt employee is absent (e.g., assumed ill) for 4 full days and there are 12 hours in the sick leave bank, how many hours are docked from the employee's salary?
A: Reduce the sick leave bank by 12 hours and dock salary for the remaining time (2 days, 4 hours). Thus: day 1 = 8 hours sick leave; day 2 = a combination of 4 hours sick leave and 4 hours salary docking; days 3 and 4 = salary docking for a full day each. In this particular case, the answer would also apply to a non-exempt employee.
Q: Is there a way for departments to compensate exempt employees for work that seasonally requires more than 40 hours per week?
A: Unfortunately, there is no way to compensate an exempt employee for time worked beyond 40 hours per week. The emphasis for the exempt employee is on what it takes to get the work done. One week might require more than 40 hours; one week might require fewer than 40 hours.
Q: Are departments permitted to keep any type of records that reflect hours worked by an exempt employee?
A: Yes, but only in full workday increments. Such records cannot be kept in hourly increments and cannot reflect times of arrive and departure. We recommend recording and reporting only absences of a full day.
We suggest that a manager clearly identify coverage expectations and work requirements of the employee's position. It is expected that employees be available to clients and colleagues. These expectations should be outlined in the job description and measured in the performance review process.
Q: What options do exempt employees have if they finds that their supervisor is consistently asking them to put in "extra time" in lieu of assigning tasks to non-exempt employees?
A: The options available include:
Q: What do I do if my supervisor expects me to finish a project before I leave for the day, but I have had so many interruptions it is still not done?
A: As soon as you recognize that you will be unable to complete an assigned task by the deadline, you should discuss it with your supervisor. Your supervisor has the option of extending the deadline, if feasible, of reassigning the work, or of obtaining approval for you to work overtime.
Q: What alternatives to timekeeping does a manager have to handle abuses of time by an exempt employee?
A: We suggest that a manager clearly identify coverage expectations and work requirements of the employee's position. It is expected that employees be available to clients and colleagues. These expectations should be outlined in the job description and measured in the performance review process.