Winston-Salem/Forsyth County Schools

WINSTON-SALEM/FORSYTH COUNTY SCHOOLS COMPLIANCE WITH FAIR LABOR STANDARDS ACT November, 2007

BACKGROUND Winston-Salem/Forsyth County Schools is committed to being responsible with taxpayer dollars (interpret as “frugal”) and committed to complying with all federal and state laws and regulations. One of the most important federal laws with which we must comply is the Fair Labor Standards Act (FLSA). Until the early 1980’s, school districts were exempt from the Fair Labor Standards Act, which made sense, because the Act’s original purpose was to prevent private enterprises from gaining an unfair competitive advantage on other private enterprises by working their employees more hours without adequate compensation. In the early 1980’s, some politicians undoubtedly decided that government employees needed to be covered by the Act as well.

The FLSA specifically exempts teachers and other licensed professional employees are specifically exempted from coverage under the act. However, nearly all of our classified employees are covered by the provisions of the FLSA. This guide discusses the provisions of the FLSA as they govern our “non-exempt” employees – those covered by the FLSA.

OVERTIME PAY PERMITTED ONLY UNDER LIMITED CIRCUMSTANCES The Winston-Salem/Forsyth County Schools Policy 4233 governs the use of overtime by non-exempt employees. Section III of AR 4233 reads as follows:

A. No overtime shall be worked by a school system employee unless approved, in advance, by the employee's supervisor. B. Reasonable efforts should be made by supervisory personnel to provide non-exempt employees with time off from work on an hour-for-hour basis within the same work week that daily overtime hours are worked. C. Overtime work, when properly authorized and not compensated for within the same work week, shall be compensated by time off with pay at the rate of one and one-half hours of compensatory time for each hour of overtime worked. D. Overtime pay, at the rate of 1.5 times an employee's regular rate of pay, may be provided as compensation for overtime work only when approved by the appropriate Division Director and when funds are appropriated and available for this purpose within the school system's budget.”

Supervisors may feel like they are getting mixed messages from WS/FCS. On the one hand, you are told that we will not pay employees for overtime without specific prior approval. However, you must not interpret the prohibition against overtime pay as a prohibition against overtime work or as a prohibition against recording all hours worked. The Department of Labor and/or the Courts will penalize any employer found to be failing to keep accurate and complete records of hours worked by employees. The Board’s policies expressly state that overtime worked shall be compensated through granting time off (“compensatory time”) unless pay is expressly authorized by an administrator at the Division Director level or higher.

As supervisors/managers of classified employees, WS/FCS does expect you to oversee their job duties and work performance to minimize the amount of overtime necessary for any individual employee or employees. It is perfectly acceptable (and expected) to have one employee helping another employee temporarily to relieve an excessive temporary workload. One of the key factors in employee turnover is a supervisor who does not recognize and deal with excessive workloads as specified in Section “B” above. WINSTON-SALEM/FORSYTH COUNTY SCHOOLS COMPLIANCE WITH FAIR LABOR STANDARDS ACT

TIME SHEETS MUST REFLECT ACTUAL TIME WORKED One of the key concepts of FLSA is that every non-exempt employee (interpret as classified employee) must record (or otherwise have captured) all of their time worked on a daily basis. Another key concept is that a non-exempt employee cannot volunteer any time doing things that are within or similar to their regular job duties and responsibilities. A third key concept is that the employer is still liable for overtime compensation even if the time worked was never recorded/approved on a timesheet or captured through a timekeeping device.

In Winston-Salem/Forsyth County Schools, our expectation is that all overtime worked will be recorded on time sheets and, unless pre-approved for payment, will be compensated through compensatory time off during the school year.

All classified employees are subject to the above requirements. As a supervisor/manager, you must insist that all classified employees record all hours worked and you must work with that employee to allow him/her to take the required compensatory time off within the same school year, even if that means the employee uses compensatory time in lieu of sick leave and/or annual leave throughout the school year.

MANDATORY REQUIREMENTS UNDER FEDERAL LAW The following is a checklist of timekeeping provisions of FLSA that require your daily supervision to insure compliance:

 Work time begins, and must be recorded as beginning, the moment the employee reaches his/her duty station or otherwise begins performing work duties.  Work time ends, and must be recorded as ending, when the employee stops performing job duties for that day.  If using a timesheet, it must be completed by the employee on a daily basis, not all at one time at the end of the absence reporting period.  If you have a set work schedule for your employee and the employee arrives before the time for him/her to begin work, you must insure that the employee performs no job duties before the day is scheduled to begin or else you must insist that the employee record the earlier start time. For example, if a classified employee’s scheduled work day is 7:30-3:30 and the employee enters the building at 7:15, the employee must be required to go to a lounge or another place other than his/her duty station and perform no job duties prior to 7:30. If earlier arrival or later departure is a regular occurrence, you should document that you have witnessed the employee performing no job duties prior to and/or after their regular work schedule. If the employee regularly reports to his/her duty station at 7:15, it is unlikely that a judge would accept any documentation that indicates a 7:30 start of the workday.  Surprisingly to some, federal law does not require a duty-free lunch break or any other duty- free breaks during the day. However, unless you provide completely duty-free breaks of at least 25-30 consecutive minutes, all time must be considered time worked. For example, teacher assistants who eat lunch in the cafeteria with students must have their lunch time counted as time worked.  If an employee takes work home, the employee must record time worked at home. WS/FCS strongly discourages allowing employees to take work home, in that you have no accurate way to measure/approve the time worked.  Time spent on work duties away from the employee’s regular duty station is considered time worked and must be recorded as such. For example, if the lead secretary makes the daily bank deposit on her way home from work and the extra driving time (in excess of the time it would take to drive straight home) and time inside the bank is 15 minutes, the lead secretary must add 15 minutes of time worked to her time sheet. Another example – time spent

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traveling from school to a workshop/conference and from the workshop/conference back to school is considered time worked and must be recorded as such.

Other FLSA provisions of which you must be aware include:

 Overtime is measured on a weekly basis and is any time worked beyond 40 hours in a week.  Overtime work requires compensation at 1.5 times the regular rate of compensation, whether paid or compensatory time off.  Leave time and holidays are not considered time worked for purposes of measuring overtime. Please see examples on the following pages.  Work of more than 8 hours in a day is not considered overtime if at least an equal amount of time off is granted or occurs within that same work week, but can generate the need for compensatory time off at a non-overtime rate. Please see examples on the following pages.  While not clearly delineated in the law, it is the position of WS/FCS that compensatory time off may be granted in anticipation of future overtime work, if clearly documented as such on time sheets or time records. Please see the example on the following pages.  It should be to the employees’ benefit to use accumulated compensatory time off in lieu of sick leave or annual leave – leave balances can accumulate into future school years and become more valuable as pay rates increase. Compensatory time off, by law and board policy, must be used up during the same school year as when it was earned. Please communicate with your employees that work overtime that compensatory time off should be used before using sick leave or annual leave.  Managing compensatory time balances throughout the school year is critical. The time sheet, whether you are using the paper version or the excel version, allows you to keep a running balance of compensatory time earned. For employees such as lead secretaries, whose work load is extremely heavy in August-October, you may have to “suggest” some time off at strategic times, such as professional days, Christmas and spring holidays, intersession days, etc. It may not work to wait until June days after students or other ten-month employees are gone for the year, because that time may be necessary work time for financial closeout purposes.  To reiterate, employees cannot be permitted to work without recording their time worked. The FLSA does not give non-exempt employees the right to “volunteer” their time to the employer that employs them. The court system is full of cases where an employee that was at one time willing, even eager, to volunteer their time is now filing suit for back pay.  To reiterate, the best way to avoid all overtime-related issues is to be knowledgeable of your employees’ workloads and flexible in the use of your staff to provide assistance when one employee is overloaded. While the law will not allow you to prevent an employee from reporting time worked, the law gives you plenty of authority to require that employees work only their scheduled days and times and to rearrange workloads to facilitate employees working only their scheduled days and times. This requires active personnel management on your part, which is an expectation of all supervisors in the school district.

EXAMPLES OF FLSA TIMEKEEPING ISSUES

Example 1 (secretary/clerical)

A lead secretary, whose regular work schedule is 7:30-3:30 with lunch at her desk (8 hours), works 7:30-4:30 Monday, Tuesday, Wednesday, and Thursday, and 7:30-3:30 on Friday of a given work week. How much compensatory time has she earned?

Answer: She worked 44 hours, which is 40 regular hours plus 4 hours of overtime. The 4 hours of overtime converts to 6 hours of compensatory time that must be granted as time off before the end of the fiscal year.

The same example as above, except that Friday is a Holiday. How much compensatory time has she earned?

Answer: She worked 36 hours and received 8 hours of Holiday pay. Her time sheet reflects 44 total hours, but none of the hours are considered overtime hours. She has earned 4 hours of compensatory time, which must be granted as time off before the end of the fiscal year.

The same example as Example 1, except that the hours worked on Friday are 7:30-11:30, with the lead secretary getting an early start to the beach. How much compensatory time has she earned?

Answer: She worked 40 hours. The temptation is to consider Friday afternoon as a half-day of annual leave, but leave should only be taken when there is a deficit of hours worked (less than 40). She has worked 40 hours that week and you have allowed the time off Friday afternoon to avoid the accumulation of overtime/compensatory time. No overtime is worked, no compensatory time is earned, and no leave is to be charged.

By the end of September, the lead secretary has accumulated 42 hours of compensatory time (at straight time). During the first full week in October, the lead secretary is out sick on Monday, goes to the doctor on Tuesday morning, reports to work at midday on Tuesday, working five hours that day, works 9 hours per day on Wednesday and Thursday, and then needs to have Friday off to drive to an out-of-state wedding. How should her timesheet look that week?

Answer: Monday should be reported as 8 hours of compensatory time, Tuesday should be reported as 5 hours worked and 3 hours of compensatory time, Wednesday and Thursday should be reported as 9 hours worked each, and Friday should be reported as 6 hours of compensatory time, for a weekly total of 23 hours worked and 17 hours of compensatory time off. The lead secretary’s compensatory time balance at the end of the week would be 25 hours. No leave time should be charged until compensatory time is used up.

On Tuesday night of this week, the school has parents in for a curriculum night. The parents begin arriving around 5:45pm, and the building clears out around 7:45pm. The lead secretary works her regular eight hours that day (7:30-3:30), but chooses to stay in the building piddling, socializing, and eating a dinner she packed from home until she is needed to help direct parents. She leaves the building at 7:45. How many hours worked should be recorded?

Answer: First of all, the principal should have made a conscious decision as to whether the lead secretary is needed in the building after 3:30. Since classified employees are “nonexempt” (subject to overtime regulations) every attempt should be made to find a nonexempt employee to stay late first. However, if they do stay, they must record all time worked. At issue is the time between 3:30 and 5:45. If she remains at her duty station, answering the phone when it occasionally rings, cleaning up her desk, organizing paperwork for the following day, answering questions from teachers that are also hanging around, etc, all time in the building must be recorded as time worked. However, if you can direct her (and monitor her compliance) to spend that time away from the school building or to take a true dinner break, that time would not have to be recorded as time worked.

Example 6 (teacher assistant)

An elementary kindergarten assistant’s regular work hours are 7:45-3:45, with no provision for duty- free lunch. On Monday and Wednesday of this work week, the teacher assistant works her regular schedule, but on Tuesday and Thursday several buses are late picking up students and she has to supervise students until 4:15, and on Friday one of her class’s students misses the bus and she must wait with the student at school until the parent arrives at 4:45. How much compensatory time has she earned?

Answer: She has worked 42 hours for the week, 2 hours of which are overtime hours and carry forward at time-and-a-half. Therefore, she has earned 3 hours of compensatory time, which must be granted as time off before the end of the fiscal year.

In example 4 above, if the student missing the bus occurs on Wednesday instead of Friday, is there a way that you can avoid having the kindergarten assistant report overtime for the week?

Answer: If the kindergarten assistant is allowed to leave work at 1:45 on Friday, she would report 8 hours worked on Monday, 8.5 hours worked on Tuesday, 9 hours worked on Wednesday, 8.5 hours worked on Thursday, and 6 hours worked on Friday, for a total of 40 hours worked, with no overtime accumulation and no leave time charged.

An elementary kindergarten assistant’s regular work hours are 7:45-3:45 (8 hours), with no provision for duty-free lunch. However, four times per year the kindergarten assistant is expected to attend PTA meetings or other evening functions that last 3 hours each. In anticipation of these overtime hours, your kindly principal adjusts the assistant’s schedule to have her leave work at 3:30 every professional day, every Thursday and Friday, and every day (except the meeting day) the week of a night meeting. The week of August 20-24, 2007, a week of five professional days, the assistant works four days from 7:45-3:30, while the day of open house is an 8-hour work day. How much compensatory time has she earned for the week?

Answer: The kindergarten assistant’s time should be reported as 7.75 hours per day worked and 0.25 hours per day of compensatory leave for four of the five days and 8 hours for the open house day, generating 39 hours worked for the week and a negative 1.00 hours of compensatory time.

Continuing Example 6 above, if the assistant works the scheduled hours for three weeks, and using one hour of comp time each week, at the end of that time she will have accumulated a total of a negative 3.00 hours of compensatory time (4 days/wk X 3 weeks X .25 hrs). If the first evening PTA meeting is the following Tuesday night and she works 3 hours that evening and takes off at 3:30 the other four days of that week, she will report 7.75 hours worked for four days (not reporting compensatory time for the other 0.25 hour per day in this week) and 11 hours worked on the PTA meeting day, for a total hours worked that week of 42. The two hours of overtime converts to 3.00 hours of compensatory time, exactly balancing the negative 3.00 hours of accumulated compensatory time.

WS/FCS strongly recommends some accommodations similar to this for classified employees that will be required to attend evening meetings during the school year. Please communicate all such accommodations to the classified employees so that they recognize receipt of the benefit of the time off in anticipation of overtime.

While WS/FCS sets 8 hours per day as the standard for full-time employment, it is not necessary that employees work exactly 8 hours per day. The examples above reflect the way to account for work

p. 5 WINSTON-SALEM/FORSYTH COUNTY SCHOOLS COMPLIANCE WITH FAIR LABOR STANDARDS ACT that is just slightly less than 8 hours in a day – report compensatory time, which may yield a negative compensatory time balance. If an employee accumulates a sizable negative compensatory time balance without a plan for future overtime work, this may be documentation for a discussion with the employee about job performance. However, it also may be the opportunity to have this employee work overtime to help reduce the workload of another employee for a period of time.