Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) stands as a cornerstone of federal labor legislation, enacted in 1938 to safeguard workers' rights and establish essential standards for employment practices in the United States.
Commonly referred to as FLSA, this comprehensive law encompasses various aspects of wage and hour regulations. It sets forth crucial provisions such as minimum wage requirements, rules governing overtime pay, guidelines for record keeping, and safeguards against exploitative child labor practices. Importantly, these provisions apply not only to employees in the private sector but also extend to those working within Federal, State, and local government entities.
Enforcement of FLSA compliance falls under the purview of the Wage and Hour Division within the U.S. Department of Labor (DOL), tasked with ensuring fair treatment and adherence to statutory requirements across diverse employment sectors.
Among its key mandates, the FLSA mandates that employers pay their employees at least the federally established minimum wage, which currently stands at $7.25 per hour. Moreover, it delineates specific exemptions from overtime pay provisions for certain categories of workers who satisfy predefined criteria under the "white-collar" exemption tests. This exemption encompasses various roles such as administrative, professional, executive, outside salesperson, and computer employees, offering them relief from overtime pay obligations under specified conditions.

The determination of the non-exempt/exempt status of a classification is based on an evaluation of the duties performed and the responsibilities associated with a position as established by the Department of Labor’s Fair Labor Standards Act. Typically, an employee must satisfy three requirements to qualify for exemption from the overtime requirements of the FLSA:

1. The employee must receive pay on a salary basis.
2. Currently, the employee must earn a salary of $684 per week ($35,568 annually).
3. The employee’s primary job duty must be a recognized exempt duty under the applicable exemption tests.

FLSA provides the employee’s primary job must involve certain types of work to meet the test for an executive, professional, or administrative exemption from the overtime rules.  The rules are complex; please refer to the DOL Wage and Hour Fact Sheet #17A for additional details about these exemptions. 
An employee’s primary duty is “the principal, main, major or most important duty that the employee performs” as defined by the FLSA.  A primary duty may be deemed exempt if it requires a high-level of discretion and independent judgement with respect to matters of significance.
While an employee spending 50% of their time on exempt work will typically satisfy the primary duty requirement, it is important to note that time alone is not the sole test when determining if a primary duty is exempt. 
NOTE: An employee’s working title or classification is not sufficient to establish exempt status.

Under the federal FLSA, a non-exempt employee is one who is entitled to at least the minimum wage for each hour worked and to overtime whenever working more than 40 hours in a workweek.  Any employee may be classified as non-exempt.
By contrast, an employee who is exempt from the overtime provisions of the FLSA is not eligible to be paid overtime. In order to be exempt from overtime, the employee’s job duties performed must meet one of the FLSA exemption tests, must be paid on a fixed salary basis, either at a rate of at least $684 per week ($35,568 annually), or meet the job duties for which the salary level and salary basis tests do not apply.
Non-exempt employees must account for all hours worked and all leave taken, while exempt employees account only for leave taken.

Non-exempt employees must account for all hours worked and all leave taken. All time worked must be reported. Failure to report work hours is a DOL violation and is not acceptable. Managers will be responsible for reviewing and approving non-exempt employees’ time for each pay period.

 No, the classification is a legal designation that cannot be waived.

No. Even if an employee satisfies the minimum salary threshold of $684 per week ($35,568 annually), the primary job duty performed must meet the “duties test” under the FLSA to be exempt from the overtime rules. 

Teachers, lawyers, and doctors – as defined by the Fair Labor Standards Act and confirmed by Human Resources are exempted by definition and are not subject to the salary threshold test. To be properly designated as a teacher according to the DOL, an employee must have actual instructional duties.  Faculty and instructional academic employees whose primary duties are teaching are exempt regardless of their salaries.  Those who support teaching activities without actual teaching interaction are subject to FLSA.

Yes. According to the DOL, as long as the employee meets the salary basis test, the salary level test (at least $684/week), and the duties test, the employee can be considered exempt under FLSA regardless of percent of appointment or number of hours worked.  The salary minimum is not prorated for part-time work. In other words, an employee’s annualized salary (for those that work less than a 100 percent appointment) cannot be taken into consideration when factoring in FLSA exemption status.

Overtime refers to the additional compensation owed to employees designated as non-exempt under the Fair Labor Standards Act (FLSA) for hours physically worked in excess of 40 in a workweek. This compensation is typically paid at a rate not less than one and one-half times the employee's regular rate of pay. For public employers, such as the University of Wyoming, there are specific provisions regarding overtime compensation:

• Employees classified as non-exempt must receive additional compensation for any hours worked over 40 in a workweek.
• Instead of cash payments, public agencies are allowed to compensate non-exempt employees with compensatory time off (comp time). This means that for each hour of overtime worked, employees receive time off at a rate of one and one-half hours for each overtime hour worked.

The standard workweek begins 12:01 a.m. Sunday and ends at 12:00 midnight the following Saturday.

No. UW must pay overtime for any hours worked in excess of 40 during the workweek in which vacation or sick leave is used. Time worked for overtime purposes consists of any hours worked during the workweek less sick or vacation leave, and any leave with pay.

Though the FLSA does not require employers to provide breaks or rest periods for employees, UW encourages departments to allow for short breaks. Breaks may not be taken at the beginning or the end of the work period or appended to the meal break.

No. UW defines the workweek as 12:01 a.m. Sunday through 12:00 midnight the following Saturday. Any amounts worked in excess of 40 hours during this time period must be paid according to the FLSA requirements. If you work 43 hours in the first week of the pay period, you cannot adjust your work schedule to 37 hours the following week.

No. Non-exempt employees are paid for actual time worked. If they are 2 hours late for their normal work schedule start time, or leave early, they will need to take compensatory time, vacation or sick leave depending on the circumstances of their late arrival or early departure.

Yes. Any overtime must be pre-approved by a supervisor. Failure to request approval is a violation of policy and may result in disciplinary action.

Yes. If the employee works without authorization, or does not receive prior permission to work overtime, they must still be paid for these hours. It is the responsibility of management to see that work is not performed beyond scheduled hours without prior approval and to counsel the employee and initiate disciplinary action if the process has not been followed.

No. An employee who is eligible for overtime cannot volunteer to work “off the clock” and is not permitted to waive their rights under the FLSA. 

Yes. An employee, with supervisor approval, may adjust their schedule during the workweek to offset extended workdays. Alternatively, the supervisor may require that the employee adjust their schedule. For example, if an employee needs to work into the evening (e.g., two hours later than normal), it may be possible to allow the employee to arrive to work two hours later another day within the same workweek, provided this does not disrupt business operations. 

Yes. Non-exempt employees may not work during their lunch break.  If they do, this time counts as hours worked. The performance of any work duties, such as answering phones or emails during the lunch break, is considered work, and must be compensated accordingly. 

Yes. The performance of any work duty, such as answering phones or emails during off hours, is considered work, and must be compensated accordingly.

Per the UW Employee Handbook, it is the policy of the University to make overtime payments in the form of compensatory time off at the rate of time and a half.  Maximum accumulated comp time is 160 hours worked (240 hours paid, i.e., 160 x 1.5). Comp time shall be used before taking any vacation leave unless the employee is at or near the maximum vacation accrual amount allowed.

Yes. There are specific rules regarding travel compensation for non-exempt employees. Excluding normal commuting time, non-exempt employees should be compensated for travel time unless it meets the following conditions:

1. The travel is overnight;
2. The travel occurs outside of the employee’s regular work hours;
3. The employee is traveling on a common carrier or as a passenger; or
4. No work is performed during the travel.

However, special rules apply to special situations. Please refer to FLSA and Travel Time for Non-Exempt Employees for additional guidance. 

Supervisors need to evaluate whether staff development, training, and committee activities that occur outside of the employee's normal work hours are considered compensable. According to the Fair Labor Standards Act (FLSA), for such activities to not be considered compensable work time for non-exempt employees, all of the following four criteria must be met:

1. Attendance must occur outside the employee’s work hours.
2. Attendance must be voluntary.
3. The employee must not perform any productive work while attending (work that benefits the employer).
4. The training or meeting should not be directly related to the employee’s job.

If any of the above conditions are not met, the time spent on these activities must be treated as hours worked and thus compensable.

While institutions of higher education are generally covered by the FLSA's minimum wage and overtime provisions, several provisions apply to employees at these institutions that exempt them from overtime requirements. 

• Teachers are exempt from overtime if their primary duty is teaching, tutoring, instructing, or lecturing. This includes regular academic teachers, professors, adjunct instructors, teachers of skilled and semi-skilled trades and occupations, and vocal or instrument music teachers. In addition, the salary level test does not apply to the teaching exemption.
• Athletic coaches and assistant athletic coaches are exempt from overtime if their primary duty involves teaching. This includes instructing athletes on how to perform in their sport. Those who primarily perform recruiting activities, breaking down film, and other manual labor, office or otherwise are not considered “teachers” and will not meet the exemption requirements unless paid at least $684 per week ($35,568 annually) and meet one of the “white collar” exemption duties tests.
• Administrative academic personnel that help run higher education institutions and interact with students outside the classroom, such as department heads, academic counselors and advisors, intervention specialists and others with similar responsibilities are subject to a special salary threshold that does not apply to white-collar employees outside of higher education. Instead, they are not eligible for overtime if they are paid at least as much as the entrance salary for teachers at their institution.
• The DOL typically views graduate and undergraduate students engaged in research under a faculty member's supervision in the course of obtaining a degree to be in an educational relationship and not an employment relationship with the school. As such, these workers are not entitled to overtime.
• Graduate students whose primary duty is teaching or serving as a teaching assistant generally qualify for the teaching exemption and are not entitled to overtime.
• Postdoctoral researchers who engage only in research and do not teach are generally non-exempt and are entitled to overtime. Postdoctoral researchers that have a primary duty of teaching may qualify for the teaching exemption.
• Student residential assistants enrolled in bona fide educational programs who receive reduced room or board charges or tuition credits from the university are not generally considered employees under the FLSA; therefore, they are not subject to the FLSA’s overtime requirements.  

• Department of Labor – Final Rule: Restoring and Extending Overtime Protections https://www.dol.gov/agencies/whd/overtime/rulemaking

• Department of Labor - Biden-Harris administration finalizes rule to increase compensation thresholds for overtime eligibility, expanding protections for millions of workers https://www.dol.gov/newsroom/releases/whd/whd20240423-0

• Department of Labor – Overtime Pay https://www.dol.gov/whd/overtime_pay.htm
• Department of Labor - Fact Sheet #17S: Higher Education Institutions and Overtime Pay Under the Fair Labor Standards Act (FLSA) https://www.dol.gov/agencies/whd/fact-sheets/17s-overtime-educational-institutions

• Department of Labor – Hours Worked under the Fair Labor Standards Act (FLSA) https://www.dol.gov/agencies/whd/fact-sheets/22-flsa-hours-worked

• UW Employee Handbook https://www.uwyo.edu/hr/_files/docs/human-resources/employee-handbook.pdf