0800 Classification and Compensation

0850(F) OVERTIME ELIGIBILITY

.1 BACKGROUND

.110 Purpose

.111 The Federal Fair Labor Standards Act (FLSA) is a worker protection statute that governs, among many things, the process which determines whether a position is Eligible or Ineligible for overtime compensation.

.112 FLSA was originally enacted in 1938 to protect workers in the areas of minimum wage, overtime pay, and child labor.  The Act has been amended many times since, most recently in 2004.

.113 The FLSA provides minimum standards that may be exceeded, but cannot be waived or reduced.  Employers may, on their own initiative or under a collective bargaining agreement, provide a higher overtime premium than is required by FLSA (time and one half the regular rate of pay for all hours worked over 40 hours in a workweek).  For example, New York State, as described under Subsection .213 below, guarantees overtime compensation for positions allocated to Grade 22 or below, even if the positions meet the FLSA exemption criteria and would be otherwise Ineligible.

.2 PROCEDURE

.210 Overtime Eligibility Determination

.211 When a new title is requested, the Division of Classification and Compensation must determine whether or not incumbents will be Eligible or Ineligible for overtime compensation.

.212 Under the FLSA regulations, all titles are considered overtime Eligible unless they meet one, or a combination of the FLSA's Executive, Administrative, Professional Creative, Professional Learned, Computer Employee, Outside Sales, or Highly Compensated Employee exemption criteria.  Brief descriptions of the criteria are:

1. Executive – One whose primary duties include the management of a recognized department or agency, supervising staff, and work that includes exercising discretion and independent judgment (i.e., department heads, division/bureau managers, section heads, office supervisors, etc.).
2. Administrative – One whose primary duties include the performance of office or non-manual work directly related to management policies or general government operations, and work that regularly requires exercising discretion and independent judgment (i.e., not “line” or program functions, “staff” functions such as office managers/administrative assistants/business officers/contract administrators, etc.).
3. Professional Creative – One whose primary duty must be in the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor (i.e., actors, musicians, composer, writers, etc.).
4. Professional Learned – One whose primary duty must be the performance of work requiring advanced knowledge customarily acquired by a prolonged course of specialized instruction in the field of science or learning, defined as work which is predominantly intellectual in character, and which includes work requiring the consistent exercise of discretion and judgment (i.e., attorneys, physicians, engineers, etc.).
5. Computer Employee – One who is employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field.
6. Outside Sales – One whose primary duty must be making sales or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer, and must be customarily and regularly engaged away from the employer’s place or places of business.
7. Highly Compensated Employees – Employees performing office or non-manual work and paid total annual compensation of $100,000 or more are exempt from the FLSA if they customarily and regularly perform at least one of the duties of an exempt executive, administrative, or professional employee identified in the standard tests for exemption.

.213 Pursuant to State collective bargaining agreements, titles allocated at or equivalent to Grade 22 or below, are generally Overtime Eligible, regardless of the above exemptions. 

.214 Pursuant to State collective bargaining agreements, titles allocated to Grade 23 or paid the equivalent or above, are Overtime Ineligible unless:

1. The title does not meet any of the exemptions described in Subsection .212 above.
2. Blue Collar Workers – The exemptions provided by FLSA do not apply to manual laborers or other “blue collar” workers who perform work involving repetitive operations with their hands, physical skill, and energy.  Such employees are entitled to minimum wage and overtime premium pay under the FLSA, and are not considered exempt regardless of how highly paid they might be.
3. First Responders – The exemptions provided by FLSA do not apply to Police, Fire Fighters, Paramedics, and other First Responders.

.220    Requesting an Overtime Waiver

.221 Applications for overtime waivers should be directed to the Division of the Budget.  In accordance with Budget Policy and Reporting Manual Item G-1024, waivers may be granted pursuant to provisions of the law by the Director of the Budget when it is determined that strict adherence to the rules would be detrimental to the sound and orderly administration of State government.

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TM-65 - Replaces: All of Section 0800 Dated Prior to August 2008

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