of the FLSA
The Fair Labor Standards
Act of 1938 established federal requirements for the payment of minimum
wages, overtime pay, record keeping, and child labor standards for employees
covered by the Act and not exempt from specific provisions. Initially,
the FLSA applied only to private sector employers. However, in
1985 the U.S. Supreme Court concluded that Congress could apply the
FLSA to state and local government under the Commerce Clause of the
Constitution. Since 1985, cities and towns also had to comply
with the FLSA. The Equal Pay Act of 1963 amended the FLSA to prohibit
pay differences based on differences in sex. The FLSA regulates
employee wages and hours in the following areas:
- Minimum Wage
- Child Labor
- Equal Pay
- Record Keeping
- Overtime Pay
state and federal laws differ, the law requires that the one that
is more favorable to the employee must be put into practice.
As of this update, the state minimum wage was higher than the federal
Note: All employees, including student workers and
temporary employees should be paid at least minimum wage to remain
in compliance with the federal minimum wage standard.
The Fair Labor
Standards Act imposes certain restrictions on the employment of minors
under 18 years of age. Most student workers at SPU are exempt
from child labor restrictions listed in the FLSA.
Note: If you plan to hire a minor, please contact the Office
of Human Resources at (206) 281- 2809.
No employer subject
to the Equal Pay Act can discriminate between employees on the basis
of sex by paying wages "at a rate less than the rate at which
he pays wages to employees of the opposite sex in such establishments
for equal work on jobs the performance of which require equal skill,
effort, and responsibility, and which are performed
under similar working conditions," Equal Pay Act, 29 U.S.C. x
Note: In recommending and evaluating wages or wage increases
for employees in jobs that require equal skill, effort,
and responsibility (not necessarily an identical job), be certain
to make pay decisions without reference to a person’s sex.
State and federal
laws and regulations require the employer to collect and maintain
certain employee information such as name, address, occupation, birthdate,
Note: Generally, the Office of Human Resources and the
Payroll Department will take care of these details through our normal
paperwork processes (for example, time sheets, PAF’s, appointments,
I-9’s). Supervisors need to be aware of the requirements and understand
that prompt collection of this information is required by federal
The FLSA requires
employees who are not exempt from the Act (nonexempt or "classified"
staff) to be paid at one-and-one-half times the regular rate of pay
for any hours over 40 worked in a workweek. Overtime pay is
based on the normal wage rate.
in and Waiting time
waiting time constitutes "hours worked" requires a case-by-case
analysis. The key question is whether the employee is able to effectively
use the time for his or her own purposes. Relevant factors to
this question include:
- the employment
agreement and the parties’ conduct under it;
- the relationship
between the waiting time and the job in question;
- whether the
employee is completely relieved of all duties until a specified
time in the future;
- whether the
employee may leave the work site during the waiting time;
- the duration
of the waiting time; and
- the degree
of predictability associated with the waiting time.
Note: Periods during which an employee is completely relieved
of duty and which are long enough to enable the employee to use the
time effectively for the employee’s own purposes, are not hours worked.
nonexempt and exempt work
"hourly" employees are asked to do additional work for the
same employer, if the combined total hours worked goes over forty
(even if the additional work is exempt in nature) hours worked over
forty must be compensated at time-and-one-half of the regular
hourly wage rate.
off in lieu of cash payments for overtime
People are placing
an increasingly high value on time spent away from work. Many times
employees would choose to take time off from work instead of receiving
overtime pay. Supervisors can work with employees to support
this preference where possible, but it must be done within legal boundaries.
There is one exception
to paying overtime as described above (see overtime
pay). Under this exception, an employee may choose to take time
off in lieu of receiving overtime pay as long as the following
three conditions are met:
- The employee
must specifically and voluntarily request to take time off in lieu
of receiving overtime pay. This must not be initiated or coerced by the supervisor.
- When converting
overtime hours to time off, hours worked in excess of 40 hours in
a work week must be multiplied by 1.5. For example, if an employee
worked 42 hours in a single work week, the 2 hours of overtime multiplied
by the 1.5 overtime conversion rate = 3 hours of paid time off.
Employees who choose to use the time off option may reduce their
work by three hours to offset the overtime.
- The time off
must be taken within the same pay period that the overtime
was earned. Time off that is unused prior to the end of the pay
period will be paid as overtime.
Note: The time off option may be implemented at the supervisors
discretion as long as the above three requirements are met.
It is very important that the employee voluntarily agrees to the time
off option without feeling any pressure or obligation to do so. However,
supervisors are under no obligation to approve this time off
option, but may wish to do so for a number of reasons (budget concerns,
cyclical nature of their departments workload, the employees
request for flexibility, etc.). If this option is exercised, time
sheets must be marked clearly and appropriately to avoid overpayment
and other related problems. Please call Human Resources at ext. 2809
or Payroll at ext. 2533 if you have questions regarding how to mark
this option on the timesheet. This rule does not apply to exempt staff
as they do not work on an hourly basis.
meetings and training programs
If the four following
criteria are met, the FLSA does not require employers to count as
"hours worked" time spent attending lectures, meetings,
training programs, or similar functions when:
is outside the employee’s regular working hours.
- The employee
does not perform any productive work while attending the program
is in fact voluntary.
To meet this criterion,
the employer cannot require the employee’s attendance; and the employee
must not be led to believe that nonattendance would adversely affect
his or her employment situation.
- The program
or function is not directly related to the employee’s job.
- Training is
"directly related" to the employee’s job when it is designed
to make the employee more effective at his or her present job.
- Training is
not "directly related" to the employee’s job when it prepares
the employee for a different job, including a promotion, or teaches
the employee a new or additional skill.
(relationship of training to the employee’s job) is immaterial if
the employee unilaterally decides to attend training offered by entities
independent of the University.
(regardless of status as full-time, part-time, or temporary employees),
who work more than five consecutive hours must be allowed a meal period
of at least 30 minutes beginning no less than two nor more than five
hours from beginning of shift. Employees who work more than
three hours of overtime are required to have an additional 30 minute
meal period, prior to or during the overtime period. Neither
state nor federal law requires that employers pay for these meal periods
if the employee is completely relieved from duty during the break.
A nonexempt employee
must be allowed a rest period of 10 minutes paid time for each four
hours of working time. Rest periods should be scheduled as close
as possible to the midpoint of the work period.
Note: Many conscientious nonexempt staff members are tempted
to work through lunch and not take breaks due to the size of their
workload. Remember that work "suffered or permitted"
is the responsibility of the supervisor, not the employee. Seattle
Pacific University’s standard work day starts at 8:00 AM and ends
at 5:00 PM. If an employee does not take a full hour for lunch,
and does not take their required breaks, they are technically working
more than an eight hour day for which they are paid. Please
be sure your nonexempt employees are following the above guidelines
and are paid for all hours of work. Meal and rest periods are required
and staff members must be allowed and should be strongly encouraged
to take them.
On-call time is
a special type of waiting time. As with waiting time, the key question
is whether the employee is able to effectively use the time for personal
purposes. An employee who is not required to remain on the employer’s
premises, but is merely required to leave word about where he or she
may be contacted, does not constitute working on-call. Relevant "illustrative"
- the degree
to which the employee’s movements are geographically restricted;
the frequency of call-ins;
- how quickly
employees are expected to respond to call-ins;
- the employee’s
ability to trade on-call responsibilities with others;
- whether a pager
causes restrictions on the employee’s use of the time; and
- the employee’s
actual activities during the time on-call.
Note: The Office of Human Resources can assist you in determining
whether waiting time or "on call" time constitutes "hours
worked" that must be compensated.
address various situations in which time spent traveling is or is
not considered "hours worked" for purposes of the FLSA.
When travel time is integral to performing the employee’s job, the
time must be treated as work time. When travel time is merely a normal
incident of employment, it need not be treated as such. The situations
addressed by the travel time regulations include:
- Travel between
Employee’s home and workplace: Ordinary home to work travel
time need not be counted as "hours worked".
Call-Outs: When an emergency call makes it necessary for the
employee to travel a substantial distance from home to a place other
than the employee’s normal work site, the travel time is time worked.
- Travel between
job sites during the workday: This time must be counted as "hours
Day Business Trips:
need not count as work time those components of the travel time
that could be regarded as ordinary travel between home and work
(e.g., traveling from home to the airport).
worked" includes travel time where the travel is performed
for the employer’s benefit and at the employer’s special request
to meet the needs of the particular and unusual assignment (e.g.,
driving to another city for a special one-day assignment).
must count as "hours worked" the time the employee
spends traveling during his or her regular hours of work (e.g.,
between 8:00 AM and 5:00 PM), regardless of whether the travel
occurs on a normal workday or on an off day.
enforcement policy is to ignore time the employee spends as
a passenger outside his or her regular working hours.
Vacation, Holiday or Sick hours
According to the Fair Labor Standards Act, nonexempt employees must be paid overtime at time and one-half their regular rate of pay for all hours actually worked over 40 in a single workweek. Thus, in calculating how many hours a nonexempt employee actually works in a week, the employer does not have to count the paid vacation or holiday time towards the 40-hour workweek.
For example, an employee normally works Monday through Friday, eight hours a day, and receives a paid holiday and does not work on the Monday. The employee then works Tuesday through Friday, eight hours a day, and is asked to work four additional hours on Saturday. The employee’s pay for the week would reflect a total of 44 paid hours, however since the employee actually worked only 36 hours, he would not receive any overtime pay.
"suffered or permitted"
The FLSA clearly
states that it is the employer’s responsibility to enforce the overtime
rules, not the employees.” Overtime must be paid if the employer
"knows or has reason to know" that the employee is working.
The location of the work (e.g., at the job site or away from it) is
immaterial if the employer knows or has reason to know of the employee’s
Note: To prevent incurring wage liability for work time
not requested or desired, supervisors should instruct nonexempt employees
that any overtime must be approved by them in advance and in writing.
Good two-way communication about this is very important.
The workweek at
SPU is defined as 12:00 am Sunday, through 11:59:59 pm Saturday.
perform “volunteer work” that is obviously primarily for the benefit
of the employer, by working through their lunch hours, coming into
work early and staying late, and sometimes taking work home.
Frequently, the same employees do not record the extra time, and even
resist employer requests that they do so. When the employer
requests, directs or controls or requires the employee to be on the
employer’s premises, even when they are required to perform civic
or charitable work, this would be considered as "hours worked"
and must be paid as such.
of volunteer work as defined by a Wage and Hour Administrator:
- The services
are entirely voluntary, with no coercion by the employer, no promise
of advancement, and no penalty for not volunteering.
- The activities
are predominately for the employee's own benefit.
- The employee
does not replace another employee or impair the employment opportunities
of others by performing work which would otherwise be performed
by regular employees.
- The employee
serves without contemplation of pay.
- The activity
does not take place during the employee's regular working hours
or scheduled overtime hours.
- The volunteer
time is insubstantial in relation to the employee's regular hours.
signed by Acting Wage Hour Administrator Warren D. Landis, December
Note: SPU offers opportunities for employees to "volunteer"
their time. Volunteer time should not be counted as "hours worked"
so long as the work is truly charitable, and civic (QUEST, phone-a-thon),
and there is no perception that the employee’s decision not to "volunteer"
would adversely affect his or her employment situation. Employees
often avoid recording hours worked that are outside of their normal
schedule. You must always insist that employees record time in an
accurate manner. An employee’s refusal to follow these rules
may constitute insubordination, and should be dealt with accordingly.
The Office of Human Resources is available to assist you in this area.
Exempt employees are
not covered under the Fair Labor Standards Act minimum wage or overtime
provisions. The theory behind exempt employees is that they should be
paid a set salary to get the job done, regardless of the amount of time
involved, and that hourly reduction of an exempt employee’s pay is inconsistent
with the salary status. In order to fall under one of the "white
collar" exemptions, employees must satisfy a stringent duties and
salary test as described below:
Because the "duties"
determination is an individual one and depends on the nature of the
duties performed by the particular employee, the employee’s actual
duties and qualifications determine the employee’s status rather than
the particular title assigned to the employee’s position. There are
five categories of exemptions briefly categorized as follows (although
the regulations provide a "long" and "short" test
for each category of exemption):
Generally includes individuals whose primary duty consists of "office
or non-manual work" which:
- is "directly
related to management policies or general business operation"
of the employer (activities must be "administrative" as
opposed to "production; general business
- More than 50%
of their work requires the "exercise of discretion and independent
- regularly and
directly assists an employee employed in a bona fide executive or
- or who executes
special assignments and tasks under only general supervision or
performs (under only general supervision) work along specialized
or technical lines
requiring special training, experience or knowledge.
Includes individuals whose:
- primary duties
consist of the management of the business enterprise or one of its
components or departments and
- who customarily
and regularly directs the work of two or more employees and
- who has the
authority to hire or fire other employees or whose suggestions and
recommendations as to the hiring or firing and as to the advancement
and promotion or any other change of status of other employees will
be given particular weight; and
- who customarily
and regularly exercises discretionary powers; and
- who does not
devote more than 20 percent, or, in the case of an employee of a
retail or service establishment who does not devote as much as 40
percent, of their hours of work in the workweek to activities that
are not directly and closely related to the performance of the work
described in paragraphs (a) through (d).
- Employee works
no more than 20 percent of any workweek in non exempt activities,
- Employee regularly
works away from the employer’s work place in making sales.
includes individuals whose primary duties consist of work requiring
knowledge of an advanced type in a field of science or learning
customarily acquired through a prolonged course of specialized
intellectual instruction and study, as distinguished from a general
academic education and from an apprenticeship, and from training
in the performance of routine mental, manual, or physical processes
- Work that is
original and creative in character in a recognized field of artistic
- Teaching, tutoring,
instructing, or lecturing in the activity of imparting knowledge
and who is employed and engaged in this activity as a teacher in
the school system or educational establishment or institution by
which they are employed, or;
- Work that requires
theoretical and practical application of highly specialized knowledge
in computer systems analysis, programming, and software engineering,
and who is employed and engaged in these activities as a computer
systems analyst, computer programmer, software engineer, or other
similarly skilled worker in the computer field.
Note: Most of SPU’s exempt staff are categorized under
the FLSA’s "Administrative" and “Executive” exemptions.
SPU currently refers to these staff as "Exempt Staff.”
Faculty fall under the FLSA’s "Professional" exemption.
All employees are categorized according to the regulations of the
FLSA. The Office of Human Resource compares detailed job descriptions
with FLSA definitions to determine the employee’s exempt or nonexempt
share a common requirement: the employer must pay the exempt employee
on a "salary basis.” To meet the "salary basis"
requirement, the federal regulation requires that the employee be
- a predetermined
- an amount that
is "not subject to reduction because of variations in the quality
or quantity of the work performed"; and
the employee must receive his or her full salary for any week in
which he or she performs any work, "without regard to the number
of days or hours worked".
reductions in salary are permitted for full day absences when accrued
sick or vacation leave is not available.
Note: The main point of the salary test is to avoid calculating
an exempt employee’s pay on an hourly basis. Overtime exemptions
may be jeopardized if the exempt employee's pay is calculated by an
hourly rate (e.g. when additional hour for hour compensation is paid
to salaried employees for work performed over the 40 hour work week).
However, not all forms of extra payment are prohibited. Bonuses and
commissions are permitted in the regulations
It is important to
remember that when an employer (or supervisor) "knew or should have
known" that the FLSA regulations were being violated, and an affected
employee complains, the employer may be heavily penalized. Such penalties
include the following:
- Back pay
- Liquidated damages
- Attorney fees
- Convictions and
- Civil monetary
- Poor publicity
- Persons who willfully
violate the law are subject to fines and/or imprisonment.
Note: You are the closest person to your staff’s work habits.
Your understanding and application of this law in managing both your exempt
and your nonexempt employees is critical to the University in terms of
keeping the University free from liability and resulting penalties.
Deductions, Exempt Employees
The following pay
deductions are permitted without negating the employee’s salaried
- Deductions for
personal absences other than for sickness or disability from work
of one day or longer. Personal absences do not include those caused
by the employer or the operating requirements of its business.
- Deductions because
of absences due to sickness or disability lasting one or more days
"if the deduction is made in accordance with a bona fide plan, policy,
or practice of providing compensation for loss of salary occasioned
by both sickness and disability".
- Deductions that
serve as good-faith penalties "for infractions of safety rules of
The following pay
deductions are not permitted. If
taken, they could negate an employee’s exempt status:
- Deduction for
absences caused by the employer or its business operation requirement.
- Deductions for
absences caused by jury duty, attendance as a witness, and temporary
military leave. The employer may, however, offset any compensation
the employee receives for these activities against the salary the
employer would otherwise pay.
- Deductions for
a partial day’s absence. Even when the absence is longer than a day,
if the employer’s policy requires charging the absence to paid leave,
but the paid leave falls slightly short of covering the entire absence,
an impermissible pay deduction of less than one day’s pay may result.
If this occurs, the employer may lose the overtime exemption. However,
deductions from accrued leave for part-day absences are permissible
so long as the employee receives in payment an amount equal to his
or her guaranteed salary.
- Deductions for
disciplinary short term suspensions for less than a week (unless imposed
because of major safety infractions). Therefore, disciplinary suspension
(for other than major safety violations) should be for a full week
or full multiple weeks. Payment of additional compensation to exempt
employees Exemptions can be defeated when additional hour for hour
compensation is paid to salaried employees for work performed over
the 40 hour work week. Not all forms of extra payment are prohibited.
Bonuses and commissions are permitted in the regulations
Note: Be careful not to treat exempt employees as you would
nonexempt employees with regard to accounting for time off, paying
additional compensation for extra work, or docking pay for any reason.
One area we have trouble here at SPU is the idea of "comp time"
where time off is given to exempt staff on an hour-per-hour basis
for time worked over 40 hours. Any such treatment which mirrors
treatment given to nonexempt staff may defeat the exemption. The
exemption is given in the first place because the employee is paid
for the work performed, not the hours worked.
of additional compensation to exempt employees
Exemptions can be
defeated when additional hour for hour compensation is paid to salaried
employees for work performed over the 40 hour work week. Not all forms
of extra payment are prohibited. Bonuses and commissions are permitted
in the regulations
Note: Be careful not to treat exempt employees as you would nonexempt
employees in regards to accounting for time off, paying additional compensation
for extra work, or docking pay for any reason. One area we have trouble
here at SPU is the idea of "comp time" where time off is given to exempt
staff on an hour-per-hour basis for time worked over 40 hours. Any such
treatment which mirrors treatment given to nonexempt staff may defeat
the exemption. The exemption is given in the first place because the
employee is paid for the work performed, not the hours worked.