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The FLSA (Fair Labor Standards Act) is a federal labor law. It contains minimum wage provisions, Equal Pay Act, child labor restrictions, and a variety of other federal labor and employment law sections. A key provision of the Act is that eligible employees must be paid time and one-half for all overtime hours worked.

Exempt under the FLSA means the position is NOT eligible to receive overtime compensation.

Non-exempt under the FLSA means the position is ELIGIBLE and must be compensated for overtime.  Non-exempt (overtime eligible) jobs typically include hourly paid jobs and also include salaried jobs where the pay rate is below $844 per week or where the primary duties of the job do not meet the FLSA’s job level requirements.

The designation under the FLSA as overtime exempt or non-exempt is not specific to any one employment category across the board.  Classified staff, university staff, and research faculty can all be either overtime exempt or non-exempt depending on the individual position’s job duties, pay frequency and pay level.

CU Boulder HR is the final approver on overtime eligibility and exemption for Boulder campus positions. The FLSA provides several criteria that HR must use for making this determination. The questions below provide a general illustration of how this criteria typically works.

1. Does the primary duty of the position involve teaching, the practice of medicine, or the practice of law?  If yes, the position is exempt from overtime.
2. Does the primary duty of the position involve professional IT work paid at least $27.63 per hour?  If yes, the position is exempt from overtime.
3. For jobs not outlined in #1, is the position paid on a salaried basis? If not, the position is non-exempt and eligible for overtime.
4. If the position is salaried, is the salary level at least $844 per week. If not, the position is non-exempt and eligible for overtime. Note that this minimum salary level is not pro-rated by the percentage of time of the appointment. The employee must be making at least $844 each week (on or after 7/1/2024) to be exempt from overtime for that week, regardless of percent of time.
5. If the position is paid a salary of at least $844 per week, do the primary duties and responsibilities of the position meet the criteria outlined by the FLSA for the executive, professional, administrative, computer or creative exemptions?  If not, the position is non-exempt and eligible for overtime. If yes, the position is exempt from overtime.

Employers are required to keep time records for both non-exempt and exempt employees under the FLSA. Time tracking requirements for non-exempt employees are more detailed than for exempt employees. CU’s My Leave system is an acceptable time tracking option as well as other IT systems or paper time tracking methods. For non-exempt (overtime eligible) employees, hours worked each day and total hours worked each workweek (including overtime or comp time earned or used) must be documented and approved each pay period by both the employee and supervisor.

Yes, both overtime exempt and overtime eligible employees can use My Leave for time tracking and leave reporting.  Overtime EXEMPT employees use My Leave to track only leave time taken, not hours worked.  Overtime ELIGIBLE employees will use My Leave to track hours worked each day and weekly overtime earned in addition to reporting leave taken.

In My Leave, the OT eligible employee is able to indicate when they are using comp time just like they can when they use leave such as vacation or sick. Unfortunately the system doesn’t keep a running balance of comp time earned, but it is possible when reviewing an employee’s timesheet to go back and calculate how much was earned and how much was used.

 An offline can be helpful for keeping a running tally and is encouraged until My Leave has more functionality.

Employees are encouraged to contact a Position Management & Compensation Consultant CU Boulder Human Resources for any questions or concerns they may have about FLSA-related practices.

The exemption applies to licensed physicians and other practitioners, including general practitioners and specialists, osteopathic physicians (doctors of osteopathy), podiatrists, dentists (doctors of dental medicine) and optometrists (doctors of optometry or bachelors of science in optometry). Also included are employees engaged in medical internship or resident programs, whether or not licensed to practice prior to the beginning of the program, provided the employee possesses the appropriate degree required for the general practice of the profession. The employee should possess either a license or certificate permitting the practice of medicine or the requisite academic degree for the general practice of medicine.

Overtime is any time worked over 40 hours in a workweek. Overtime is compensated at time and one-half the regular hourly rate for all hours worked over 40 hours in a workweek. Only actual work time counts toward the 40 hour threshold. Leave time does not count as work time under the FLSA (except for overtime eligible essential services employees). Employees cannot waive their rights to overtime under the FLSA.

Public sector employers (includes CU Boulder) may provide time off (comp time) in lieu of cash payment for overtime.  Comp time is a form of overtime and is a trade-off for the cash version of overtime.  Comp time is therefore calculated the same as overtime – it is time and one-half the regular hourly rate for all hours worked over 40 hours in a workweek.  Employees shall be permitted to use their earned comp time within a reasonable period after making the request, if such use does not unduly disrupt the operations of the department. Employees must be able to use the time for their own personal purposes. Departments may implement internal guidelines for requesting comp time along with comp time accrual limits. Comp time is part of the employees’ wage earnings and they are entitled to use this time as if using their cash compensation. Because comp time is the same as overtime and is part of the employees’ wage earnings, any comp time not used must be paid out to the employee. It is not forfeited.

As an employer under the FLSA, we MUST compensate an overtime eligible employee for all hours worked and ensure that hours worked over 40 in a workweek are compensated at the time and one-half rate. Departments need to have a policy or guidance on how overtime should be requested, approved and tracked, and employees need to follow their department’s guidelines. If your department’s guideline is that employees are not to work any overtime unless approved in advance, then employees are not to work any additional hours over 40 in a workweek without approval. If this is unmanageable, employees need to consult with their supervisors, their department HR liaison, and/or CU Boulder Human Resources for assistance. Regardless, employees must document all hours worked, whether approved or not. Not reporting or not recording time worked is not allowable. Overtime eligible employees must report all of the hours they work, and departments must compensate all of those hours appropriately when they have been worked even if such work time did not meet the defined policy. Overtime cannot be waived and is not discretionary for eligible employees. If time is worked, it must be reported, and it must be compensated. Please contact a Position Management & Compensation Consultant in CU Boulder Human Resources with any questions or concerns.

Part-time employees who qualify to be exempt from overtime are paid a set salary amount regardless of incidental hour fluctuations. The salary should be set commensurate with the work level expectations. Part-time employees who do not qualify to be overtime exempt and are non-exempt (overtime eligible) need to track their hours worked. All hours worked up to 40 hours in a work week will be paid at the regular rate of pay. Any hours worked above 40 in a workweek will be compensated at the overtime rate of time and one-half.

Employees may accrue up to 240 hours of comp time. Comp time earned over 240 hours shall be paid out to the employee at the next regular pay period. Departments may set additional limits on the accrual or payment of compensatory time provided a policy is created and clearly communicated to employees in advance. For example, a department may set a reasonable time period limit for comp time balances to be used by employees, such as within 6 months from when it’s earned or by the end of the fiscal year. While there is no timeline requirement for an employee to use their comp time balance, it is recommended that they take the time as soon as practical or within the guidelines of the department’s policy.

Unused comp time shall be paid out to the employee at the next regular pay period.

Yes.

Yes, but it has to be calculated correctly. Overtime is accrued at the end of each workweek. At that point, the hours worked over 40 must be converted to the time and one-half rate. In the next week, the employee could start using the comp time hours earned from the week before if needed as long as the hours have been calculated at the time and one-half rate. For example, if an employee worked 44 hours in the 1st week, the employee now has 6 hours of comp time available (4 hours x 1.5 = 6 hours). The employee can use some of these 6 hours for any future week. What you cannot do is apply only 4 hours from the 1st week to the 2nd week. As soon as 44 hours was worked the 1st week, it became 6 hours of OT/comp time for which the employee is entitled.

No, you only need to update the position description when the job duties have changed. A change in work schedule, percent of time, or overtime status does not require an updated position description. If a change in work hours or pay level results in the need to change the employee’s overtime eligibility status, use the  to initiate an addendum letter to document the change and provide notice to the employee.

Supervisors need to ensure that their employees understand what overtime is and understand the department’s requirements for tracking work hours and requesting and approving overtime. Time records need to be kept and signed off as accurate each pay period by both the employee and the supervisor. Supervisors need to ensure that their employees understand that they cannot waive their right to overtime, i.e., they can’t volunteer to do work and not track it and not be paid for it. This is a direct violation to the FLSA and will cause significant fines and back-pay costs to the department and the CU organization. Supervisors need to help their employees manage work expectations within the 40 hour workweek or allow overtime compensation when it is needed to manage deadlines.

Work time under the FLSA means time when employees are “suffered or permitted to work”. It includes all time spent performing job-related activities which (a) genuinely benefit the employer, (b) which the employer knows or has reason to believe are being performed by the employee, and (c) which the employer does not prohibit the employee from performing. These include activities performed during off-the-clock time, at the job site or elsewhere, whether voluntary or not.

Yes.

Waiting time is work time when the period of waiting is unpredictable, short in duration, and employees are unable to use the time effectively for their own purposes. If the employee is working, the waiting time is considered work time. Waiting time is not work time when employees are completely relieved from duty and the waiting period is long enough to enable them to use the time effectively for their own purposes.

Mandatory training or meetings are work time. Voluntary training during normal work hours is work time. If the meeting or training time is 1) outside normal work hours, 2) voluntary, 3) NOT job related, AND 4) no other work is currently performed, the time is not counted as work time (all 4 criteria must be met.)

Travel time is compensable depending on the nature of the travel.

Home-to-work travel. Traveling from home before the regular workday begins and returning home at the end of the workday is ordinary home-to-work travel, and is not considered work time, even when a company vehicle is used. If an employee is required to work at home first and then travel to an office, the travel time is considered work time.

Special one-day assignment in another city. An employee who normally works at a fixed location, but travels to a different city for a work-related assignment and then returns home the same day, is considered working while traveling. The department may deduct the time that the employee would normally spend commuting to the regular work site.

Travel that is all in the day’s work. Time spent traveling by an employee as part of their principal activity, such as travel from job site to job site during the workday, is work time. Home to the first job site is not work time.

Travel away from the home community. Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is work time when it cuts across the employee’s normal workday. The paid time includes not only the hours worked on regular working days during normal working hours but also travel time during corresponding hours on non-working days, and any other hours that an employee actually performs work. The time spent by an employee who travels outside regular working hours as a passenger on public transportation, such as an airplane, train, etc., may be considered work time at the department’s discretion.