1. A. The Division of State Human Resources develops an overtime model policy to assist an agency in its policy development. The Division of State Human Resources must review and approve each agency’s overtime policy.
2. B. Each agency shall develop an overtime policy and establish procedures that will ensure compliance with federal and state laws, including the Fair Labor Standards Act (FLSA).
3. C. By interpretation of the United States Department of Labor, State government is considered to be one employer for the purposes of applying FLSA.
4. D. For overtime purposes the two categories of employees are: (a) nonexempt (overtime provisions of FLSA do apply) and (b) exempt (overtime provisions of FLSA do not apply). The exempt or nonexempt status of any employee must be determined by the agency based on the provisions of FLSA. It is the responsibility of the agency head or his designee to determine whether an exemption is applicable to a particular employee.

5. E. Workweek is seven consecutive 24-hour periods, i.e., 168 consecutive hours designated by the employing agency.

   Exception - In the case of law enforcement personnel or fire protection and emergency medical personnel, these categories of employees have work schedules up to 28 consecutive 24-hour periods, i.e., 672 consecutive hours designated by the employing agency.

6. F. Hours worked are all hours that an employee is permitted to work for the employing agency. Hours worked includes time during which an employee is necessarily required to be on the employing agency’s premises, on duty, or at a prescribed work place. Hours worked do not include leave with or without pay or holidays when an employee does not actually work.

7. G. Overtime is actual hours worked in excess of 40 hours in a given seven consecutive day workweek as determined by the employing agency. The Fair Labor Standards Act contains special provisions for determining when overtime is earned by employees in certain job categories. These categories include:

   1. 1. Fire protection and emergency medical personnel;
   2. 2. Law enforcement (including security personnel in correctional institutions);
   3. 3. Hospitals or institutions primarily engaged in the care of the sick, the aged, the mentally ill, or the disabled that reside on the premises; and
   4. 4. Employees who are compensated for overtime using the fluctuating workweek method of payment for overtime as defined by FLSA which must be approved by DSHR prior to implementation.
8. H. Generally, a nonexempt employee should not incur overtime; however, overtime may be permitted when authorized by the agency.

9. I. Compensatory time is an acceptable alternative to overtime compensation for employees.

   1. 1. Upon separation from employment, nonexempt employees shall be paid for unused compensatory time, and exempt employees shall not be paid for unused compensatory time. Nonexempt employees shall be paid out for any unused compensatory time prior to transferring to another agency. Prior to an employee changing from a nonexempt status to an exempt status, nonexempt employees shall be paid out for any unused compensatory time.

   2. 2. Nonexempt employees shall be paid for unused compensatory time at a rate of compensation not less than the higher of:

      1. a. The average regular rate received by such employee during the last three years of the employee’s employment, or
      2. b. The final regular rate received by such employee.

10. J. Nonexempt Employee Procedures

    1. 1. Payment for Overtime

       Nonexempt employees shall either be paid overtime or given compensatory time for hours worked in excess of 40 hours in a given workweek of seven consecutive days as determined by the employing agency. For hours worked in excess of 40 in an established workweek of seven consecutive days, payment for overtime or the accrual of compensatory time shall be at the rate of time and one-half the employee’s regular rate, computed on the basis of a 40-hour workweek. (Refer to Exceptions in Section 19-707.02 G.)

    2. 2. Compensatory Time for Nonexempt Employees

       1. a. A nonexempt employee engaged in public safety work, emergency response work, or seasonal work may not accumulate more than 480 hours of compensatory time. Any nonexempt employee who has accumulated 480 hours of compensatory time shall be paid overtime for additional hours of work.
       2. b. A nonexempt employee engaged in work other than public safety work, emergency response work, or seasonal work, may not accumulate more than 240 hours of compensatory time. Any nonexempt employee who has accumulated 240 hours of compensatory time shall be paid overtime for additional hours of work.

    3. 3. Recordkeeping for Nonexempt Employees

       Each agency must maintain information for nonexempt employees as required by the United States Department of Labor.

11. K. Exempt Employee Procedures

    1. 1. No Payment for Overtime

       Exempt employees shall not be paid overtime.

    2. 2. Compensatory Time

       If allowed by an agency’s overtime policy, exempt employees may receive compensatory time for hours worked in excess of 40 in the workweek. If granted, compensatory time must not be at a rate greater than one hour of compensatory time for each hour worked in excess of 40 in the workweek. Under no circumstances shall an exempt employee accumulate more compensatory time than FLSA allows for a nonexempt employee.

12. L. Employment at More Than One State Agency

    When a nonexempt employee is employed at more than one State agency, each employing agency shall calculate separately the hours worked by the employee. By interpretation of the United States Department of Labor, State government is considered to be one employer for the purpose of applying FLSA; therefore, the agencies where the individual is employed should jointly determine whether such a nonexempt employee is owed any overtime compensation during a workweek. (For information on dual employment, refer to Section 19-713.)

13. M. Volunteers

    Time spent as a volunteer is not included in hours worked. An employee who performs hours of service for a public agency for civic, charitable, or humanitarian reasons, without promise, expectation or receipt of compensation for services rendered, is considered to be a volunteer during such hours. An employee shall not be considered a volunteer if the employee is otherwise employed by the same public agency to perform the same type of services as those for which the employee proposes to volunteer. An employee may be paid expenses, reasonable benefits, a nominal fee, or any combinations thereof, for their service without losing status as volunteers. Determining if the receipt of expenses, benefits or fees would result in loss of volunteer status is a case-by-case analysis based on the total amount of expenses, benefits, and fees in the context of the economic realities of the situation.

HISTORY: Added by State Register Volume 26, Issue No. 1, eff January 25, 2002. Amended by State Register Volume 34, Issue No. 5, eff May 28, 2010; State Register Volume 40, Issue No. 10, eff October 28, 2016; SCSR 48-9, eff September 27, 2024.