This policy provides direction for granting overtime compensation to nonexempt employees. In all cases, overtime pay or compensatory time should be held to a minimum consistent with the needs of the university.
Assistant Vice Chancellor for Human Resources
Vice Chancellor for Finance and Administration
Director, Titling and Compensation
This policy provides direction for granting overtime compensation to nonexempt employees. In all cases, overtime pay or compensatory time should be held to a minimum consistent with the needs of the university.
Who This Policy Applies To
All nonexempt employees as defined under the Fair Labor Standards Act (FLSA), regardless of UW–Madison employee category. For example, this may include University Staff, Academic Staff, or Limited employees. (Note: Temporary Employees are nonexempt under FLSA and are covered under a separate policy; please refer to 9.03 Temporary Employee.)
The Fair Labor Standards Act (FLSA) determines whether a position is eligible for overtime pay. There are two types of employment under the FLSA, exempt and nonexempt.
Employees that are nonexempt must be paid or granted compensatory time, both at the premium rate (an employee's regular hourly rate times 1.5), for all hours worked that exceed 40 hours in a work week.
Exempt positions are considered salaried positions and do not normally receive additional compensation for overtime work. Although exempt University Staff are paid based on their total job responsibilities, there are circumstances where overtime pay may be warranted for this group of employees (see Section VII).
Nonexempt Employees and Overtime Compensation
Nonexempt Hours Worked
- Hours worked include all the time during which an employee is required or permitted to work or to wait for work when the employee is unable to use the working or waiting time effectively for the employee’s own purpose. The “Guide to Determining Hours Worked,” Appendix #1, contains examples of what are normally considered work time and nonwork time under the FLSA.
- An activity is not counted as hours worked if:
- Attendance must occur outside the employee’s regular working hours;
- Attendance must be voluntary;
- The employee must do no productive work while attending; and
- The activity is not directly related to the employee’s job.
- Specific situations must be evaluated on a case-by-case basis to determine whether activities are considered hours worked and whether hours worked may be exempted from the overtime provisions. Employer-directed training is always considered hours worked.
- The additional details in section IV provide guidance to divisions in determining actual hours worked under federal and state law.
Nonexempt Additional Details Determining Actual Hours Worked Under Federal and State Law (29 C.F.R. Part 785, Ch. DWD 272, Wis. Adm. Code)
- Training time directly related to an employee’s job. Training is directly related to an employee’s job if it is designed to make the employee perform the present job more effectively, as distinguished from training for another job. Training directly related to an employee’s job is considered hours worked. Lectures, meetings, training programs, and similar activities are considered training.
- Training excluded from hours worked. Attendance at training is not counted as hours worked in any of the following situations:
- The employee on the employee’s own initiative attends an independent school, college, or trade school outside of regular hours even if the courses are related to the employee’s job.
- Attendance is voluntary or outside of regular working hours or in a program of instruction established by the employer that corresponds to courses offered by independent bona-fide institutions of learning. This guideline applies even if the courses are directly related to the employee’s job, or paid for by the employer.
- The employee works under a written apprenticeship agreement or program that meets the standards of the U. S. Department of Labor and attends related instruction that does not involve productive work or performance of the apprentice’s regular duties. This guideline does not apply if a written agreement specifically provides that attendance is hours worked.
- Public safety employees attending a police or fire academy, or other training facility, are not considered to be on duty when they are not in class or at a training session, or if they are free to use such time for personal pursuits.
- Travel time (29 C.F.R. Part 785, Ch. DWD 272, Wis. Adm. Code).
- Determining whether time spent in travel counts as hours worked depends on the kind of travel involved. Federal and state laws differ somewhat on travel away from the home community and should be considered carefully.
- Chapter DWD 272.12 (2)(g) states “Travel time away from the home community for business purposes that occurs for the benefit of the employer is considered hours worked.”
- Any work that an employee is required to perform while traveling must be counted as hours worked even though it may not be during normally scheduled work hours.
- An employee who drives a car, bus, boat, or plane, or an employee who is required to ride in one of these vehicles as a helper, is working while riding and the time must be counted as hours worked. This guideline does not apply during bona-fide meal periods or sleep time.
- Special detail work for fire protection and law enforcement employees. The hours worked by a UW–Madison law enforcement employee on a special detail for a non-UW employer are not required to be counted as hours worked. This guideline applies even if:
- The employee chooses to be employed on the special detail.
- The special detail work is in law enforcement or related activity.
- The employee’s regular employer:
- Requires the employee to be hired by the separate and independent employer to perform the special detail;
- Facilitates the employment of the employee by the separate and independent employer; or
- Otherwise affects the condition of employment of such employee by the separate and independent employer.
- Occasional or sporadic employment. Occasional or sporadic work performed by an employee for a regular employer need not be counted as hours worked for overtime purposes if the following conditions are met:
- The work is undertaken solely at the employee’s choosing (i.e., not required by the employer);
- The work meets the definition of occasional or sporadic; and
- The work is in a different occupational category from any capacity in which the employee is regularly employed.
- Typists (code 203) are considered to be performing work in a “different general occupational category” from file clerks (code 206).
- Terminal system operators, typographic composing machine operators, and clerk typists are considered to be performing work in the same general occupational category, (i.e., they are all typewriting machine operators (code 203)).
- Employees performing a combination of duties that cross into different general occupational categories would still be considered to be doing work in the same general category as the regular jobs. For example, if an employee’s regular job consists of a combination of typist (code 203) and file clerk (code 206) duties, then occasional or sporadic employment as a file clerk would be in the same general occupational category as the regular job. In this case, the occasional and sporadic work hours must be added to the hours worked on the regular job to determine the FLSA overtime liability.
- Shift substitutions. Division-approved hours worked by employees who freely trade shifts in the same capacity during scheduled work hours may be exempt from overtime requirements. Such traded hours are excluded from the hours for which the substituting employee is entitled to overtime compensation. Employees trading with one another will each be credited as if they had worked their normal shift schedules. This applies only if the decision to trade shifts is made freely by the employees and approved by the division. If the employer requires the employees to trade shifts, overtime may be incurred.
- Unauthorized Work. The employer may not unjustly benefit from work performed without the employer’s knowledge. Hours worked by an employee without the employer’s knowledge or permission, even if contrary to the employer’s instructions, may still be considered hours worked and may still need to be compensated appropriately, depending on the specific situation. Once an employer allows the employee to work, or knows that the employee is working, or becomes aware that the employee has worked, the employee must be compensated even if the work was not preapproved, and even if it was performed at home (for example checking emails from home). If the employer has reason to believe that an employee is submitting inaccurate time reports, the employer may be liable to pay for additional overtime hours. Overtime work must be preauthorized. The Division is responsible for establishing, communicating and enforcing guidelines and procedures for approval of overtime and compensatory time. Procedures should include language that informs employees that they might be subject to discipline if they work overtime hours that were not preauthorized. (See 18.01 Corrective Progressive Discipline for University Staff and 18.03 Discipline, Dismissal, and Non-renewal for Academic Staff)
- Work performed as a Volunteer.
- A person is a volunteer only if the following criteria are met:
- The person receives no compensation; or the person is paid expenses, reasonable benefits, or a nominal fee, in any combination, to perform the services.
- Payment of expenses includes reimbursement for out-of-pocket expenses incidental to providing volunteer services (e.g., payment for the cost of meals and transportation).
- Benefits would be considered reasonable, for example, when individual volunteers are included in group insurance or retirement funds that are commonly or traditionally provided to volunteers of the agency.
- The total amount of payments (expenses, benefits, fees) must be examined to determine volunteer status.
- If an employee is performing volunteer work for UW–Madison, both of the following conditions must be met:
- The services are in a different general occupational category than that of the employee’s regular employment.
- The services are not closely related to the actual duties performed by, or responsibilities assigned to, the employee.
- Residing on employer’s premises. The fact that employees live on the employer’s premises and are on call for 24 hours a day does not mean that the employees are entitled to be paid for all those hours. Such employees have regular duties to perform and are subject to work at any time in the event of an emergency. Ordinarily, such employees have a normal night’s sleep, ample dining time and may, during certain periods, come and go as they please. A reasonable agreement should be reached with employees to make clear what times are not considered as hours worked.
- Daylight savings time effect on hours.
- Nonexempt employees are paid for hours actually worked. When daylight savings time goes into effect, third shift employees work one hour less than normal. Such employees do not get paid for the hour not worked.
- When daylight savings time ends, third shift employees work one hour more than normal. This additional hour must be counted in determining the total hours worked in that work week for overtime purposes.
Nonexempt Compensatory Time in Lieu of Overtime Payment
- Employees eligible for compensatory time in lieu of overtime payment include nonexempt University Staff, nonexempt A-Basis academic staff, and nonexempt Limited staff. (Non-leave eligible academic staff, such as C-Basis academic staff, are not eligible for compensatory time.)
- The division has authority to decide whether to provide compensatory time credits as payment for overtime rather than cash payments. Only one type of payment (cash or compensatory time) can be earned in a single week.
- Employees will be allowed to accumulate up to 80 hours of compensatory time credits. If the employee accumulates 80 hours of compensatory time credits and works over 40 hours in a work week, those hours must be paid in cash.
- Any compensatory time credits carried over from the previous calendar year that are unused by April 30 of the following calendar year will be converted to cash payments and included in earnings for the pay period that includes May 1.
- The ability to use compensatory time for approved absences is at the employee’s discretion. The ability to use compensatory time for unapproved absences is at the employer’s discretion.
Nonexempt University Staff Employees Occupying Multiple Positions
- Employees may occupy more than one position. Combined, the positions should not exceed 100% time unless there is a preapproved overload. Examples include:
The employing unit will designate positions or employees as exempt or nonexempt following the duties test of the FLSA with final review by the Office of Human Resources (OHR).
Except for law enforcement officers, FLSA nonexempt employees must be paid at a premium rate or receive compensatory time credits at a rate of 1.5 hours per hour worked in excess of 40 hours in a work week. Law-enforcement officers may be paid at a premium rate or receive compensatory time credits at a rate of 1.5 hours per hour worked in excess of 80 hours in a two-week pay period.
Occupational categories will normally be considered “different” if the first three digits of the occupational codes used in the Dictionary of Occupational Titles are different. For example:
Note: Public safety employees taking on any kind of security or safety functions are never considered employed in a different capacity. This conclusion is based on legislative history and not on the definition of “different capacity” provided above.
The Fair Labor Standards Act (FLSA) gives public employers the option of providing employees with compensatory time off in lieu of cash for overtime as long as the employee has received notice of the compensatory time option. Each Division has the authority to decide whether to provide compensatory time in lieu of cash for FLSA overtime and for non-FLSA overtime (such as for hours worked on a holiday) for FLSA nonexempt staff.
- Two part-time University Staff positions
- One University Staff position and one temporary employment position
- University staff position and an academic staff position
- Two part-time nonexempt academic staff positions
All hours worked at UW–Madison must be totaled in each work week or work period to determine if any overtime is worked. The employee and the division may agree before work is performed that the employee will be paid the premium rate for the position in which overtime hours are worked. Unless such an agreement is reached, overtime pay must be calculated based on the total employment situation at UW–Madison.
Exempt University Staff and Overtime Compensation
Current exempt Classified Staff became University Staff on July 1, 2015. For exempt University Staff, as determined by FLSA provisions, divisions will continue to have the ability to award overtime in the same manner that overtime was awarded prior to July 1, 2015. The decision to pay exempt University Staff overtime will continue to be at the division’s discretion.
Consequences for Non-Compliance
The U.S. Department of Labor may assess fines for failure to comply with the provisions in this policy.
Guide to Determining Hours Worked (See Appendix 1)
Compensatory time: paid time off the job which is earned and accrued by an employee instead of immediate cash payment for overtime. Section 7 of the FLSA provides that any employee of a public agency who has accrued compensatory time shall be permitted to use such time off within a reasonable period after making the request, if such use does not unduly disrupt the operations of the agency. Therefore compensatory time may be used to cover pre-planned, approved absences at the employee’s discretion. The ability to use compensatory time when the absence was unplanned is at the employer’s discretion.
Exempt Staff: staff that is not subject to the overtime pay or compensatory time off provisions of federal and/or state wage laws.
Fair Labor Standards Act (FLSA): the federal law that establishes labor standards for public and private sector employees. It is enforced by the Wage and Hour Division of the U.S. Department of Labor.
Hours Worked: all time during which an employee is required or permitted to work, or to wait for work, when the employee is unable to use the working or waiting time effectively for the employee’s own purpose.
Nonexempt Staff: staff eligible for overtime pay or compensatory time off according to federal and/or state wage laws.
Occasional or Sporadic: work that is infrequent, irregular or occurring in scattered instances, even when it recurs seasonally. However, work that recurs every other week is not occasional or sporadic.
Premium Rate: an employee’s regular hourly rate times 1.5.
Regular Rate: the average hourly rate actually paid to the employee as straight time pay for all hours worked in the work week or work period, including all remuneration for employment paid to, or on behalf of, the employee. An exception is any payment specifically excluded from the calculation of the regular rate under the FLSA and related federal regulations.
|Office of Human Resources (OHR)||
Link to Current Policy
Links to Related Policies
Guide to Determining Hours Worked
Note: Activities that are always considered work time or non-work time under the FLSA are designated with an “X” in the following table. [Reference 29 C.F.R. Part 785, Ch. DWD 272, Wis. Adm. Code]
|Activity||Work Time||Non-Work Time|
|Changing Clothes||If the employee is required to change before and after their shift, is not allowed to take the clothing home and is not required to launder it at home||If the employee is provided a uniform that can be worn to and from work and the employee is responsible for laundering|
|Charitable Work||If requested or controlled by the employer||If done voluntarily outside working hours|
|Compensatory Time Credits Used||X|
|Meal Periods and Rest Periods||When the employee is not completely relieved from active or inactive duties or when the meal period is less than 30 minutes||Periods of 30 minutes or more when the employee is completely relieved from duty for the purposes of eating regular meals. The employee does not have to leave the premises to be considered relieved from duty|
|Medical Attention||During normal work hours for matters that are job-related and at the employer’s discretion||Medical attention for matters that are not job-related|
|Residing on Premises||When not on duty|
|Sleep Time||When the employee is required to be on duty for less than a straight 24-hour period||Not to exceed eight hours, where an employee is required to be on duty 24 hours or more, is furnished adequate sleeping facilities and can usually enjoy at least five hours of uninterrupted sleep. (Note: It is necessary that employer and employee agree that this is not work time.)|
|Tools||Caring for tools and machinery if part of the principal duties|
|Training - General||Attendance is mandatory by the employer
Attendance is outside of the regular work hours if the employee understands or is led to believe that the employee’s present working conditions or continuance of employment would be adversely affected by nonattendance
|If all of the following criteria met:
|Training – Job Related||X|
|Training – Career Related||See Training – General||See Training – General|
|Travel – Home to Work||
|Travel – Overnight (When it Cuts Across the Employee’s Work Day)||Only the time spent in travel during the hours of the regular work day, excluding meal time.||Time spent in overnight travel away from home outside of regular working hours.|
|Travel – Overnight (Not on a Regularly Scheduled Work Day)||Travel time during what would normally be the work hours on a regular work day.||Time spent in overnight travel away from home outside of regular working hours.|
|Travel – Overnight (Public Transportation Offered)||If offered public transportation but the employee requests permission to drive the employee’s car, only actual time spent in travel during the regular work hours or time which would have been spent if public transportation had been used, whichever is less.||Time spent in overnight travel away from home outside of regular working hours.|
|Travel – Work site to Work site||Time spent by an employee in travel, as part of the employee’s normal activities during the workday, from work site to work site.|
|Unauthorized Work||Hours worked by an employee without the employer’s permission or contrary to the employer’s instructions may be considered hours worked, depending on the specific situation.|
|Waiting Time||Unpredictable short periods of inactivity when the employee is unable to use the time effectively for the employee’s own purposes even though the employee may be allowed to leave the work site. (Examples: Standby time during lunch periods and work shutdowns.)||
|Washing Up||If required by the nature of the work.||If for the employee’s convenience.|