Managing "Hours Worked" of Non-Exempt Employees through FLSA
If a non-exempt employee works for NDSU over 40 hours in one workweek (defined at NDSU as Sunday 12:01 a.m. to Saturday midnight), that employee is entitled to either overtime pay or compensatory time off at the rate of time and one-half of their regular rate of pay. Exempt employees are not entitled to either overtime pay or compensatory time.
Below are answers to questions we get on how to manage the hours worked of non-exempt employees:
Managing "Hours Worked" FAQs
Q: I know a non-exempt employee is going to have to work late Thursday night, but I don't have either time or money in the budget to give comp time or overtime pay. Is there a way I can manage the schedule to keep the employee's hours worked at 40?
A: Yes. If there is time during that same week (Sunday through Saturday) to shorten the employee's schedule by the same number of hours, that is within your authority.
Q: I need people to work extra to get caught up on some work. Can I require people to work more than 40 hours?
A: Yes, there is no law establishing the maximum number of hours an employee can be assigned to work. Supervisors have the right to assign these hours. As an employee relations matter, we advise telling employees as soon as possible and rotating overtime among willing, qualified employees.
Q: A part-time non-exempt employee usually works 30 hours per week for us, but this week worked 42 hours. Are these extra hours overtime?
A: Some of them. Hours 31-40 should be submitted on a Change Form 101 as a data change/status change. Only the two hours above 40 would be overtime. Those 2 hours would be entered by the department in the HE Time Entry screen.
Q: A non-exempt employee in this department didn't ask me if they could work overtime, but now they tell me they have. Can I refuse to pay?
A: No. NDSU having a policy on this issue is not enough. It is a supervisor's responsibility to enforce NDSU Policy 212. The employee who works overtime gets the money or the comp time; the supervisor has the right to discipline the employee for violating the policy. A verbal discussion is appropriate for the first incident.
Q: A non-exempt employee tells me she needs to work overtime to get the work done, but no one else we've had in that position has needed to do that. Do I have to allow her to work overtime?
A: No. You need to spend additional time with the employee assessing whether or not the workload has increased, or whether this may be a time management issues that requires your coaching.
Q: The employee tells me he worked extra hours, but I don't agree with all the hours he presented. How do I decide what's accurate?
A: There are several ways to document whether or not someone was in the workplace: other people who saw the employee working, telephone logs, computer logs, timeclock records, work produced. Discuss any times in question with the employee. After the discussion, if there is still disagreement, contact our office for assistance.
Q: How do I decide if I give pay or compensatory time for overtime worked?
A: You don't; the employee does. That's why it is important to discuss the employee's wishes prior to any overtime being worked.
Q: The employee wants overtime pay, but I don't have any money in the budget. What are my options?
A: If you know about that in advance of the hours being worked, there are a couple of options: 1. You reorganize the work in the department. That may mean prioritizing differently, assigning the work to an employee who will accept comp time, having exempt employees do the extra work, or performing the work yourself. 2. Ask up your chain of command for additional funding. If you find out the employee's wishes after the fact, you need to pay the overtime pay.
Q: The employee wants compensatory time, but that actually costs more because I have to backfill that the employee's position when they aren't here. Do I have to do that?
A: If you know about the employee's decision to demand compensatory time in advance of the time being worked you can reassign the work to someone who is exempt, or a non-exempt employee who will accept overtime pay. If you find out the employee's wishes after the fact, you need to give the compensatory time.
Q: How do I keep track of compensatory time?
A: Compensatory time should be tracked within Oracle/PeopleSoft HRMS. Please contact Human Resources and Payroll for instructions.
Q: The non-exempt employees in this department would prefer to be treated as exempt. They are willing to waive their right to any overtime pay or comp time. That's ok, isn't it?
A: Federal law does not allow the right of overtime for non-exempt employees to be waived. The employer is still liable if the employee changes his or her mind and demands pay or comp time.
Q: If a non-exempt employee is granted release time to attend a class using the employee tuition waiver, but the workload requires them to work a few additional hours on some weeks, how should that be handled?
A: If a non-exempt employee is allowed release time to attend a class, but on occasion based on workload, is required to put in additional hours during a work week, they should not be compensated until the release time was made up. For example, if given three hours of release time and the workload requires the employee to put in five extra hours for a specific week, the first three hours would not be compensated as the employee had not actually worked those release hours. The next two hours would be compensated at time and a half since it would put the employee over 40 hours for the week.