Fair Labor Standards Act update

Nonexempt vs. exempt

Exempt employees are paid on a salary basis and are excluded from overtime payment. Nonexempt employees who are paid hourly must report hours worked and are paid overtime for each hour worked over 40 hours per week. These three tests determine exemption:

1. Minimum salary threshold test: Employee must be paid above a specific salary threshold amount.
2. Duties test: Employee must qualify as an executive, administrator, professional, outside sales or computer professional.
3. Salary basis test: Employees must be paid on a salary basis. 

The FLSA is a federal law and all employers must comply with the updated overtime rule. The requirements of this federal law determine an employee’s FLSA status. Vacation and sick leave accrual plans are not affected by an employee's classification as nonexempt or exempt.

How the FLSA update affects ASU

Teachers, lawyers and doctors as defined by FLSA and confirmed by the ASU Office of Human Resources are exempt by definition and not subject to the salary threshold test. To be appropriately designated as a teacher, according to the DOL, an employee must have actual instructional duties. Faculty and instructional academic staff whose primary responsibilities are teaching are exempt regardless of their salaries. Nonexempt employees who work over 40 hours in a workweek supporting teaching activities and not teaching are eligible for overtime pay or comp time.

An employee's primary duty is the principal, main, major or most important function an employee performs. Determination of an employee's primary responsibility must be based on all the facts in a particular case, with a significant emphasis on the overall character of the employee's job. Factors to consider include, but are not limited to the following items: 

• Amount of time spent performing the primary or most important duty.
• An individual who spends more than 50 percent of their time performing teaching work will generally satisfy the primary duty requirement.
• Employee's relative freedom from direct supervision.
• The relative importance of the primary or most important duty compared with other types of responsibilities.

Generally, graduate, teaching and research assistants who have teaching as their primary duty are not subject to the salary tests. The DOL typically views graduate and undergraduate students who are engaged in research under a faculty member’s supervision in the course of obtaining a degree as being an educational relationship with the school and thus not an employee of the university. If a worker is not an employee under the FLSA, the laws for minimum wage, overtime and recordkeeping provisions will not apply.

FLSA status for part-time and academic year salaries

The DOL uses the actual weekly pay to determine an FLSA status and does not take into consideration whether an employee is a full-time or part-time status. For employees paid on an academic year basis, the DOL uses the actual weekly pay to determine FLSA status and does not consider contract pay or pay frequency.

Overtime pay and comp time

The university's work schedule policy defines a standard workweek for full-time; nonexempt employees is 40 hours worked between 12:01 a.m. Monday and midnight Sunday.

• If an employee earns less than $844 per week, overtime pay or comp time must be provided for hours worked over 40 in a workweek. The computation of 40 hours worked does not include paid time out of the workplace—e.g., sick leave, vacation time, etc.
• Current employees may receive comp time instead of overtime pay under the university's overtime policy. The comp time can be preserved, used or cashed out as provided by the FLSA.

How overtime pay is calculated and approved

Nonexempt employees must be compensated at a premium rate of time and a half or comp time at 1.5 hours for all hours worked more than 40 in a workweek. Paid leave time does not count toward the total hours worked in a defined week.