No. 27167 (Amendment): R477-8. Working Conditions

DAR File No.: 27167
Filed: 05/14/2004, 03:06
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The proposed amendments clarify what happens to an employee's compensatory time when his Fair Labor Standards Act (FLSA) status changes and make various nonsubstantive changes.

 

Summary of the rule or change:

In Section R477-8-6, amendments to Subsection R477-8-6(4)(c) define when accrued compensatory time lapses and allows an employee to use accrued compensatory time within the prescribed overtime year when his status changes to nonexempt. The amendments at Subsection R477-8-6(8) are a simplification and clarification of the obligation of the state to compensate an employee for hours worked.

 

State statutory or constitutional authorization for this rule:

Sections 67-19-6 and 67-19-6.7

 

Anticipated cost or savings to:

the state budget:

Amendments to this rule will require no changes to the operating procedures or practices of state agencies and thus will generate no costs or savings.

 

local governments:

By law, Section 67-19-15, this rule has no effect beyond the executive branch of state government.

 

other persons:

By law, Section 67-19-15, this rule has no effect beyond the executive branch of state government.

 

Compliance costs for affected persons:

By law, Section 67-19-15, the Department of Human Resource Management's (DHRM) rules effect only persons employed by the executive branch of state government. Rule amendments that create a cost for an employee will either impose a fee for a choice which an employee may make or will cancel a monetary benefit that an employee currently enjoys because of rule. The amendments to this rule clarify how an agency administers an employees accrued compensatory time. This right is still protected however and there will thus be no costs for an employee.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

Rules published by DHRM have no direct effect on businesses or any entity outside state government. DHRM has authority to write rules only to the extent allowed by the Utah Personnel Management Act, Title 67, Chapter 19. Section 67-19-15 limits the provisions of career service and this rule to employees of the executive branch of state government. The only possible impact may be a very slight, indirect effect if an agency passes costs or saving on to businesses through fees. However, no such costs or saving will accrue with this amendment.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Resource Management
Administration
Room 2120 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

 

Direct questions regarding this rule to:

Conroy Whipple at the above address, by phone at 801-538-3067, by FAX at 801-538-3081, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/01/2004

 

This rule may become effective on:

07/02/2004

 

Authorized by:

Kim Christensen, Executive Director

 

 

RULE TEXT

R477. Human Resource Management, Administration.

R477-8. Working Conditions.

R477-8-1. Agency Policies and Exemptions.

(1) Each agency shall write its own policies for work schedules, overtime, leave, and other working conditions consistent with these rules.

(2) The Executive Director, DHRM, may authorize exceptions to this rule, consistent with R477-2-2(1).

 

R477-8-2. Work Period.

(1) Tasks shall be assigned and wages paid in return for work completed. During the state's standard work week, each employee is responsible for fulfilling the essential functions of his job.

(a) The state's standard work week begins Saturday and ends the following Friday.

(b) State offices are typically open Monday through Friday from 8 a.m. to 5 p.m. Agencies may adopt extended business hours to enhance service to the public, consistent with overtime provisions of R477-8-6.

(c) [Employees]An employee may negotiate for flexible starting and quitting times with [their]the immediate supervisor as long as scheduling is consistent with overtime provisions of the rules R477-8-6.

(d) Agencies may implement alternative work schedules approved by the Director.

(e) [Employees]An employee [are]is required to be at work on time. [Employees]An employee who [are]is late, regardless of the reason including inclement weather, shall make up the lost time by using accrued leave, leave without pay or, with management approval, adjust their work schedule.

(f) An employee must work in increments of 15 minutes or more to receive pay for hours worked and overtime hours worked. This rule incorporates by reference 29 CFR 785.48 for rounding practices when calculating time worked.

 

R477-8-3. Bus Passes.

Agencies may participate in the purchase of bus passes for employees.

 

R477-8-4. Telecommuting.

(1) Telecommuting is an agency option, not a universal employee benefit. Agencies utilizing a telecommuting program shall:

(a) establish a written policy governing telecommuting;

(b) enter into a written contract with each telecommuting employee to specify conditions, such as use of state or personal equipment, and results such as identifiable benefits to the state and how customer needs are being met; and

(c) not allow telecommuting employees to violate overtime rules.

 

R477-8-5. Lunch and Break Periods.

(1) Each full-time work day shall include a minimum of 30 minutes non[-]compensated lunch period. This lunch period is normally scheduled between 11:00 a.m. and 1:00 p.m. for a regular day shift.

(2) [Employees]An employee may take a 15 minute compensated break period for every four hours worked.

(3) Lunch and break periods shall not be adjusted or accumulated to accommodate a shorter work day. Any exceptions must be approved in writing by the Executive Director, DHRM.

 

R477-8-6. Overtime.

The state's policy for overtime is adopted and incorporated from the Fair Labor Standards Act, 29 CFR Parts 500 to 899(2002) and Utah Code Section 67-19-6.7.

(1) Management may direct an employee to work overtime. Each agency shall develop internal rules and procedures to ensure overtime usage is efficient and economical. These policies and procedures shall include:

(a) prior supervisory approval for all overtime worked;

(b) recordkeeping guidelines for all overtime worked;

(c) verification that there are sufficient funds in the budget to compensate for overtime worked.

(2) Overtime compensation standards are identified for each job title in HRE as either FLSA nonexempt, or FLSA exempt.

(a) [Employees]An employee may appeal [their]the FLSA designation to [their]the agency human resource office and DHRM concurrently. Further appeals must be filed directly with the United States Department of Labor, Wage and Hour Division. The provisions of Sections 67-19-31 and 67-19a-301 and Title 63, Chapter 46b shall not apply for FLSA appeals purposes.

(3) An FLSA nonexempt employee[s] may not work more than 40 hours a week without management approval. [They]Overtime shall accrue [receive overtime] when [they]the employee actually works more than 40 hours a week. Leave and holiday time taken within the work period shall not count as hours worked when calculating overtime accrual[ing]. Hours worked over two or more weeks shall not be averaged [out ]with the exception of certain types of law enforcement, fire protection, and correctional employees.

(a) An FLSA nonexempt employee[s] shall sign a prior overtime agreement authorizing management to compensate [them]the employee for overtime worked by actual payment or time off at time and one half.

(b) An FLSA nonexempt employee[s] may receive compensatory time for overtime up to a maximum of 80 hours. Only with prior approval of the Executive Director, DHRM, may compensatory time accrue up to 240 hours for regular employees or up to 480 hours for peace or correctional officers, emergency or seasonal employees. Once an employee[s] reach the maximum, [they shall be paid for ]additional overtime shall be paid on the payday for the period in which it was earned.

(4) An FLSA exempt employee[s] may not work more than 80 hours in a pay period without management approval. [They shall accrue c]Compensatory time shall accrue when [they]the employee actually works more than 80 hours in a work period. Leave and holiday time taken within the work period may not count as hours worked when calculating compensatory time. Each agency shall compensate an FLSA exempt employee[s] who works overtime by [giving them]granting time off. For each hour of overtime worked, an FLSA exempt employee shall accrue an hour of compensatory time. Compensatory hours earned in excess of a base of 80 shall be paid down to 80.

(a) Agencies shall establish in written policy a uniform overtime year and communicate it to employees. If an agency fails to establish a uniform overtime year, the Executive Director, DHRM, and the Director of Finance, Department of Administrative Services, will determine the date for the agency at the end of one of the following pay periods: Five, Ten, Fifteen, Twenty, or the last pay period of the calendar year.

(b) Any compensatory time earned by an FLSA exempt employee[s] is not an entitlement, a benefit, nor a vested right.

(c) Any compensatory time earned by an FLSA exempt employee[s] shall lapse [at the end of an agency's annual overtime year]upon occurrence of any one of the following events: when an employee transfers to another agency, terminates, retires, or otherwise does not return to work before the end of the overtime year.

(i) If an FLSA exempt employee's status changes to nonexempt, that employee's compensatory time earned while in exempt status shall lapse if not used by the end of the current overtime year.[

(d) Any compensatory time earned by FLSA exempt employees shall lapse when they transfer to another agency, terminate, retire or otherwise do not return to work before the end of the overtime year.]

([e]d) The agency [director]head may approve overtime for [non-career service]career service exempt deputy and division directors, but overtime shall not be compensated with actual payment.

(5) Law enforcement, correctional and fire protection employees

(a) To be considered for overtime compensation under this rule, a law enforcement or correctional officer must meet the following criteria:

(i) be a uniformed or plainclothes sworn officer;

(ii) be empowered by statute or local ordinance to enforce laws designed to maintain public peace and order, to protect life and property from accident or willful injury, and to prevent and detect crimes;

(iii) have the power to arrest;

(iv) be POST certified or scheduled for POST training; and

(v) perform over 80 percent law enforcement duties.

(b) Agencies shall select one of the following maximum work hour thresholds to determine when overtime compensation is granted to law enforcement or correctional officers designated FLSA nonexempt and covered under this rule.

(i) 171 hours in a work period of 28 consecutive days; or

(ii) 86 hours in a work period of 14 consecutive days.

(c) Agencies shall select one of the following maximum work hour thresholds to determine when overtime compensation is granted to fire protection employees.

(i) 212 hours in a work period of 28 consecutive days; or

(ii) 106 hours in a work period of 14 consecutive days.

(d) Agencies may designate a lesser threshold in a 14 day or 28 day consecutive work period as long as it conforms to the following:

(i) the Fair Labor Standards Act, Section 207(k);

(ii) 29 CFR 553.230;

(iii) the state's payroll period;

(iv) the approval of the Executive Director, DHRM.

(6) Compensatory Time

(a) Agency management shall arrange for an employee's use of compensatory time as soon as possible without unduly disrupting agency operations or endangering public health, safety or property.

(b) Compensatory time balances for an FLSA nonexempt employee[s] shall be paid down to zero when transferring from one agency to a different agency, or when promoted, reclassified, reassigned, or transferred to an FLSA exempt position. The pay down for unused compensatory time balances shall be based on the employee's hourly rate of pay in the old position.

(7) Time Reporting

(a) An FLSA nonexempt employee[s] must complete and sign a state approved biweekly time sheet. Time sheets developed by the agency shall have the same elements of the state approved time sheet and be approved by the Department of Administrative Services, Division of Finance.

(b) An FLSA exempt employee[s] who works more than 80 hours in a work period must record [their]the total hours worked[,] and the compensatory time used on [their]a biweekly time sheet. All hours must be recorded in order to claim overtime. Completion of the time sheet is at agency discretion when no overtime is worked during the work period.

(8) Hours Worked: An FLSA nonexempt employee[s] shall be compensated for all hours [they are permitted to work]worked.[ Hours worked shall be accounted for as long as the state permits employees to work on its behalf, regardless of the reason for the work.] [Employees]An employee who works unauthorized overtime may be subject to disciplinary action.

(a) All time that an FLSA nonexempt employee[s are] is required to wait for an assignment while on duty, before reporting to duty, or before performing [their ]activities is counted towards hours worked.

(b) Time spent waiting after being relieved from duty is not counted as hours worked if one or more of the following conditions apply:

(i) the employee arrives voluntarily before their scheduled shift and waits before starting duties;

(ii) the employee is completely relieved from duty and allowed to leave the job;

(iii) the employee is relieved until a definite specified time;

(iv) the relief period is long enough for the employee to use as the employee sees fit.

(c) On-call time: [Employees]An employee required by agency management to be available for on-call work shall be compensated for on-call time at a rate of one hour for every 12 hours the employee is on-call.

(i) Time is considered "on-call time" when the employee has freedom of movement in personal matters as long as the employee is available for call to duty.

(ii) An employee must be directed by his supervisor, either verbally or in writing, that he is on call for a specified time period. Carrying a beeper or cell phone shall not constitute on-call time without a specific directive from a supervisor.

(iii) The employee shall record the hours spent in on-call status on his time sheet in order to be paid.

(d) Stand-by time: [Employees]An employee restricted to "stand-by" at a specified location ready for work must be paid full-time or overtime, as appropriate. [Workers]An employee must be paid for stand-by time if [they are ]required to stand by [their]the post[s] ready for duty, even during lunch periods, equipment breakdowns, or other temporary work shutdowns.

(e) The meal periods of guards, police, and other public safety or correctional officers and firefighters who are on duty more than 24 consecutive hours must be counted as working time, unless an express agreement excludes the time.

(f) Commuting and Travel Time:

(i) Normal commuting time from home to work and back shall not count towards hours worked.

(ii) Time an employee[s] spends traveling from one job site to another during the normal work schedule shall count towards hours worked.

(iii) Time an employee[s] spends traveling on a special one day assignment shall count towards hours worked except meal time and ordinary home to work travel.

(iv) Travel that keeps an employee away from home overnight does not count towards hours worked if it is time spent outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

(v) Travel as a passenger counts toward hours worked if it is time spent during regular working hours. This applies to nonworking days, as well as regular working days. However, regular meal period time is not counted.

(g) Excess Hours: [Employees]An employee may use excess hours the same way as annual leave.

(i) Agency management shall approve excess hours before the work is performed.

(ii) Agency management may deny the use of any leave time, other than holiday leave, that results in an employee accruing excess hours.

(iii) [Employees]An employee on schedule AB may not accumulate more than 80 excess hours.

(iv) Agency management may pay out excess hours under one of the following:

(A) paid off automatically in the same pay period accrued;[

(B) all hours accrued above 40;]

([C]B) all hours accrued above 80; or

([D]C) an employee[s] on schedule AB shall only be paid for excess hours at [retirement or termination]separation.

 

R477-8-7. Dual State Employment.

An employee who has more than one position within state government, regardless of schedule is considered to be in a dual employment situation. The following conditions apply to dual employment status.

(1) An employee may work in up to four different positions in state government.

(2) An employee's benefit status for any secondary position(s), regardless of schedule of any of the positions, shall be the same as the primary position.

(3) An employee's FLSA status (exempt or nonexempt) for any secondary position(s) shall be the same as the primary position.

(4) Leave accrual shall be based on all hours worked in all positions and may not exceed the maximum amount allowed in the primary position.

(5) As a condition of dual employment, an employee in dual employment status is prohibited from accruing excess hours in either the primary or secondary positions. All excess hours earned shall be paid at straight time in the pay period in which the excess hours are earned.

(6) As a condition of dual employment, the Overtime or Comp selection shall be as overtime paid regardless of FLSA status. An employee may not accrue comp hours while in dual employment status.

(7) Overtime shall be calculated at straight time or time and one half depending on the FLSA status of the primary position. Time and a half overtime rates shall be calculated based on the weighted average rate of the multiple positions. Refer to Division of Finance's payroll policies, dual employment section.

(8) The Accepting Terms of Dual Employment form shall be completed, signed by the employee and supervisor, and placed in the employee's personnel file with a copy sent to the Division of Finance.

(9) Secondary positions may not interfere with the efficient performance of the employee's primary position or create a conflict of interest. An employee in dual employment status shall comply with conditions outlined in R477-9-2(1).

 

R477-8-8. Reasonable Accommodation.

Reasonable accommodation for qualified individuals with disabilities may be a factor in any employment action. Before notifying an employee of denial of reasonable accommodation, the agency shall consult with the Division of Risk Management.

 

R477-8-9. Fitness For Duty Evaluations.

Fitness for duty medical evaluations may be performed under any of the following circumstances:

(1) return to work from injury or illness;

(2) when management determines that there is a direct threat to the health or safety of self or others;

(3) in conjunction with corrective action, performance or conduct issues, or discipline;

(4) when a fitness for duty evaluation is a bona fide occupational qualification for selection, retention, or promotion.

 

R477-8-10. Temporary Transitional Assignment.

Temporary transitional assignments may be part of any of the following:

(1) return to work from injury or illness;

(2) when management determines that there is a direct threat to the health or safety of self or others;

(3) in conjunction with corrective action, performance or conduct issues, or discipline;

(4) where there is a bona fide occupational qualification for retention in a position;

(5) as a temporary measure while an employee is being evaluated to determine if reasonable accommodation is appropriate.

 

R477-8-11. Change in Work Location.

(1) A change in work location shall not be permitted if this requires the employee to commute or relocate 50 miles or more, one way, beyond his current one way commute, unless:

(a) the policy is communicated to the employee at employment;

(b) the agency shall either pay to move the employee consistent with R25-6-8 and Department of Administrative Services, Division of Finance Policy 05-04.03, or reimburse commuting expenses up to the cost of a move.

 

KEY: breaks, telecommuting, overtime, dual employment

[July 1, 2003]2004

Notice of Continuation June 11, 2002

67-19-6

67-19-6.7