Overtime and Exemptions
Overtime is the work time in excess of 40 hours per work week on one or more city jobs. Work time is defined as time scheduled for employees to be on work duty and time spent on authorized paid leaves of absence such as vacation leave, sick leave, comp time off, paid military leave, etc.
- Exempt: Employees primarily performing work that is exempt from or not subject to overtime provisions of the Fair Labor Standards Act (FLSA). Overtime pay is not required under FLSA, however, the city chooses to pay overtime to exempt Non-V Class employees.
- Non-exempt: Employees primarily performing work that is subject to the overtime provisions of the Fair Labor Standards Act (FLSA). Overtime pay is required.
Overtime pay is regulated by:
- The Federal Fair Labor Standards Act (FLSA) covers all employees.
- The New York labor laws
- The Civil Service Law (See Clinton County Civil Service site for more information)
- Collective bargaining agreements
The Fair Labor Standards Act uses the terms exempt and nonexempt to describe work that is included (nonexempt) or not included (exempt) in the Act’s overtime and record-keeping provisions. The Act requires that overtime (payment for hours worked in excess of 40 hours in one week) be paid to employees performing nonexempt work. The Act exempts, or does not require, that time and one half be paid to employees performing exempt work. There are five primary exemption tests utilized to determine if a position is exempt from the overtime payment requirement :
The Exemption Test
- Executive Test
- Administrative Test
- Professional Test
- Outside Sales Test
- Computer Test
FLSA Exemption Test Summaries
The FLSA was most recently changed August 23, 2005, with two key salary changes across all exemption tests. A minimum salary requirement of $455/week ($23,660 annually) to qualify for exemption under all tests was added. Additionally, employees compensated over $100,000 per year (at least $455 per week as a salary) and regularly performing one of the other exemption criteria identified in the test can qualify for exemption. Below are tests with the exemption criteria:
Along with (1) passing the salary threshold, positions qualifying for exemption under this test must have a (2) primary duty of “managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise”, (3) “customarily and regularly direct the work of at least two or more other full-time employees or their equivalent”, and (4) must have the authority to hire or fire employees, or recommendations are given particular weight. A separate qualification for exemption under this test is for business owners who own at least 20% of the organization and are actively engaged in the management.
Along with (1) passing the salary threshold, positions qualifying for exemption under this test must have a primary duty of (2) “performing office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers”, and the primary duty includes (3) “the exercise of discretion and independent judgment with respect to matters of significance”. In an educational institution an employee qualifies for exemption if the salary threshold is satisfied, as well as the primary duty is “performing administrative functions directly related to academic instruction or training in an educational establishment”.
Along with (1) passing the salary threshold, positions qualifying for exemption under this test must have a primary duty of (2) “performing work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the exercise of discretion and judgment”, which requires advanced knowledge in a field of science or learning which can be “customarily acquired by a prolonged course of specialized intellectual instruction”. Exemption can also be achieved through the practice or law or medicine by holding a valid license to practice law or medicine and is actually engaged in such a practice or engaged in an internship or resident program for the profession. Exemption can also be achieved as a creative professional, with a primary duty of “performing work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor”. Within this exemption test, Teachers in an educational established, with a primary duty of teaching, tutoring, instructing, or lecturing are considered exempt.
Outside Sales Test
To pass this test employees must be “and regularly engaged away from the employer’s place or places of business”, and the primary duty must consist of marking sales and obtaining orders or contracts for services, which will be paid for by the customer.
Along with (1) passing the salary threshold, positions qualifying for exemption under this test must be employed as (2) “computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field” performing these type of responsibilities:
- The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
- The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
- The design, documentation, testing, creation or modification of computer programs related to machine operating systems;
- A combination of the aforementioned duties, the performance of which requires the same level of skills.