Overtime guidelines

The provisions of the federal Fair Labor Standards Act (The Act) cover all VCU employees. The Act establishes rules for minimum wage, overtime pay, equal pay, child labor and recordkeeping; and it defines exemptions from overtime pay regulations. HR has trained experts who determine exemption status of various jobs. For questions regarding exemption status, please contact the HR Consultant for your area. An employee’s specific job duties and salary must meet both of the following criteria to be considered exempt: 

• Job Duties Exemption Test: An employee’s job duties must meet certain exemption FLSA tests for executive, administrative, professional or computer jobs. Job titles do not determine exemption status. Human Resources is responsible for determining FLSA exemption status for classified positions based on the current Employee Work Profile (EWP). Managers should ensure that each employee’s EWP is current and that it accurately describes the responsibilities of the job to ensure the proper assignment of employees to FLSA exempt or non-exempt status. Managers should never inflate language on an employee’s EWP in an attempt to designate a non-exempt employee as exempt to avoid paying overtime payments, nor should they minimize responsibilities on the EWP to try to change the exemption status of an exempt employee to non-exempt and provide overtime compensation.
• Salary Basis Exemption Test: Employees must be paid on a salary basis of not less than $844 each week, regardless of whether their employment status is full-time or part-time. This salary requirement does not apply to teachers, employees practicing law or medicine and outside sales employees. 

Compensation requirements and restrictions

Exempt employees are not required to be paid overtime or to accrue compensatory leave. Only in extremely rare and unique circumstances should managers consider approving additional straight time (regular rate) payment or compensatory leave accrual for exempt employees. Under no circumstances should exempt employees be provided hour-for-hour overtime compensation or compensatory time. Accrued compensatory leave expires 12 months from the date it is issued. Exempt employees must receive approval from the supervisor, Vice President and Human Resource Consultant, who will review all compensatory leave and overtime pay requests.  See the Exempt Employee Overtime (Straight) Pay/Compensatory Leave Approval form under VCU HR forms.

Non-exempt employees must be paid time and one-half for all hours worked more than 40 or straight time (regular rate) if 40 hours are not physically worked in a workweek (from 12:01 a.m. Sunday through midnight on the following Saturday). NOTE: If an employee occasionally works seven additional minutes or less, the time will not be counted as additional hours worked.  However, if an employee occasionally works more than seven minutes, but less than 15 minutes, this time will be rounded up to the next 15-minute increment and 15 minutes of additional work time will be counted.  If early arrivals or late departures occur on a regular basis and/or multiple times during a workweek, actual minutes should be counted for the entire workweek. Remember: Any overtime worked must be pre-approved. Failure to arrive and depart timely could result in formal disciplinary action if overtime hours physically worked are accrued without prior approval.

Overtime compensation is defined as time-and-one-half payment for all hours physically worked beyond 40 in a workweek. To remain compliant with these guidelines and to avoid disciplinary action, an employee must be required and authorized by the manager to work the overtime hours – employees may not approve or authorize their own additional work hours. Managers may adjust an employee’s schedule within a workweek to avoid or minimize payments.  For example, if an employee works an extra four hours on Monday, the manager may reduce the employee’s work schedule on Friday by four hours so the employee does not work more than 40 hours during that workweek. Each workweek stands alone in calculating regular and overtime hours worked. At the manager’s discretion and with the employee’s agreement, overtime leave may be granted in lieu of overtime pay. A non-exempt employee may not accrue more than 120 hours of overtime leave, which is equal to 80 hours of overtime worked. University business operating procedures prohibit tracking compensatory time “off the record.”

Leave and holidays
Leave time and holidays do not count as time physically worked. Exempt and non-exempt employees who work on a university holiday accrue holiday leave.

Overload jobs
Overload job hours worked by classified, student or hourly employees must be reported in accordance with current university payroll and FLSA procedures.  Overtime payment is typically dependent on the FLSA status of the primary (first) job based on the chart below:

All hours that an employee works in excess of 40 in a workweek, in combination with his/her primary (first) and all overload jobs, will be paid in accordance with FLSA procedures. Questions regarding individual situations should be referred to the department’s HR Consultant.  

NOTE: Several pay and administrative issues can occur when both VCU and the VCU Health System employ the same individual.  Before hiring a current VCU Health System employee to work for VCU, departments should contact their HR Consultant.

Inclement weather and other authorized closings

Designated exempt and non-exempt employees
During inclement weather or other authorized closings, only designated employees are eligible for Inclement Weather Leave-Accrued (ILA) for hours worked if they work their normal shift during an authorized closing.  Designated employees must charge time missed to accrued leave or leave without pay, as appropriate, if they do not report to work as scheduled.  NOTE:  Designated employees who do not report to work as scheduled and are not on approved leave may be subject to disciplinary action.

Non-designated exempt and non-exempt employees
During inclement weather or other authorized closings, these employees must work or be on approved leave the day before and after the authorized closing to be paid for absence(s) caused by an authorized closing.

Travel rules for non-exempt employees
Generally, non-exempt employees are not considered at work until they reach the normal work site.  Normal commuting time is not counted as hours worked unless a work activity occurs during the course of the commute, such as picking up work materials or equipment or dropping off work mail at the post office, etc.

Time spent traveling is counted as compensable hours worked as follows:

• When travel time occurs during the employee’s regular working hours, it is counted as hours worked.  This is true whether the employee actually performs work or not, since the employee is simply substituting travel for other work duties.  This would include time spent traveling from office to office within or between campuses during the regular work day.
• When an employee is required to perform work while traveling (reading, studying or preparing a presentation or report, answering email, etc.), regardless of when the travel time takes place, it is counted as hours worked.
• When an employee drives, the time must always be counted as hours worked.
• On a one-day work assignment away from the work site (not overnight), all travel time (whether as a driver or passenger by car or common carrier) is counted as hours worked.
• If overnight travel occurs as a passenger on an airplane, train, boat, bus or car during normal working hours on non-working days (for example Saturday or Sunday for an employee who normally works Monday through Friday), the time is counted as hours worked.

NOTE: Overnight travel is not compensable if it occurs outside of regular daily working hours any time during the workweek where an employee is free to relax as a passenger.

The U.S. Department of Labor takes the position that driving is a manual labor activity, which means employees must be paid for such work, whenever it takes place, if it is for the benefit of the employer.  Thus, for overnight travel, non-compensable travel should be on a common carrier (train, plane, bus, etc.) after hours; or, at least where possible, that option should be offered to the employee.  Moreover, if an employee performs work while traveling (reading, studying or preparing a presentation or report, answering email, etc.), that time must be compensated, regardless of when the travel time takes place.

If a non-exempt employee’s entire workweek is spent outside the United States jurisdiction, that workweek is not covered under FLSA.  Otherwise, FLSA guidelines for this process are very complicated and departments should consult with their HR Consultant in such cases.

Recordkeeping requirements
For all FLSA non-exempt employees, departments are required to maintain records showing the number of hours worked each workday and workweek. In addition, departments should also ensure that employee attendance tracking forms, software or online systems accurately record leave taken, including paid holidays and all overtime, in a timely manner.  Non-exempt employees must certify the number of hours worked and supervisors must also signify acceptance of these reported hours.