Utah Code 63A-17-502. Overtime policies for state employees
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(1) As used in this section:
Terms Used In Utah Code 63A-17-502
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Department: means the Department of Government Operations. See Utah Code 63A-1-103
- Director: means the director of the division. See Utah Code 63A-17-102
- Division: means the Division of Human Resource Management, created in Section
63A-17-105 . See Utah Code 63A-17-102 - Employee: means any individual in a paid status covered by the career service or classified service provisions of this chapter. See Utah Code 63A-17-102
- Entitlement: A Federal program or provision of law that requires payments to any person or unit of government that meets the eligibility criteria established by law. Entitlements constitute a binding obligation on the part of the Federal Government, and eligible recipients have legal recourse if the obligation is not fulfilled. Social Security and veterans' compensation and pensions are examples of entitlement programs.
- Executive director: means the executive director of the Department of Government Operations. See Utah Code 63A-1-103
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Person: means :(24)(a) an individual;(24)(b) an association;(24)(c) an institution;(24)(d) a corporation;(24)(e) a company;(24)(f) a trust;(24)(g) a limited liability company;(24)(h) a partnership;(24)(i) a political subdivision;(24)(j) a government office, department, division, bureau, or other body of government; and(24)(k) any other organization or entity. See Utah Code 68-3-12.5
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
(1)(a) “Accrued overtime hours” means:(1)(a)(i) for a nonexempt employee, overtime hours earned during a fiscal year that, at the end of the fiscal year, have not been paid and have not been taken as time off by the nonexempt state employee who accrued them; and(1)(a)(ii) for an exempt employee, overtime hours earned during an overtime year.(1)(b) “Appointed official” means:(1)(b)(i) each department executive director and deputy director, each division director, and each member of a board or commission; and(1)(b)(ii) any other person employed by a department who is appointed by, or whose appointment is required by law to be approved by, the governor and who:(1)(b)(ii)(A) is paid a salary by the state; and(1)(b)(ii)(B) who exercises managerial, policy-making, or advisory responsibility.(1)(c) “Department” means, except as otherwise provided in this section, the Department of Government Operations, the Department of Corrections, the Department of Financial Institutions, the Department of Alcoholic Beverage Services, the Insurance Department, the Public Service Commission, the Labor Commission, the Department of Agriculture and Food, the Department of Human Services, the Department of Natural Resources, the Department of Transportation, the Department of Commerce, the Department of Workforce Services, the State Tax Commission, the Department of Cultural and Community Engagement, the Department of Health, the National Guard, the Department of Environmental Quality, the Department of Public Safety, the Commission on Criminal and Juvenile Justice, all merit employees except attorneys in the Office of the Attorney General, merit employees in the Office of the State Treasurer, merit employees in the Office of the State Auditor, Department of Veterans and Military Affairs, and the Board of Pardons and Parole.(1)(d) “Elected official” means any person who is an employee of the state because the person was elected by the registered voters of Utah to a position in state government.(1)(e) “Exempt employee” means a state employee who is exempt as defined by the FLSA.(1)(f) “FLSA” means the Fair Labor Standards Act of 1978, 29 U.S.C. § 201 et seq.(1)(g) “FLSA agreement” means the agreement authorized by the FLSA by which a nonexempt employee elects the form of compensation the nonexempt employee will receive for overtime.(1)(h) “Nonexempt employee” means a state employee who is nonexempt as defined by the division applying FLSA requirements.(1)(i) “Overtime” means actual time worked in excess of an employee’s defined work period.(1)(j) “Overtime year” means the year determined by a department under Subsection (5)(b) at the end of which an exempt employee’s accrued overtime lapses.(1)(k) “State employee” means every person employed by a department who is not:(1)(k)(i) an appointed official;(1)(k)(ii) an elected official; or(1)(k)(iii) a member of a board or commission who is paid only for per diem or travel expenses.(1)(l) “Uniform annual date” means the date when an exempt employee’s accrued overtime lapses.(1)(m) “Work period” means:(1)(m)(i) for a nonexempt employee, except a nonexempt law enforcement or hospital employee, a consecutive seven day, 24 hour work period of 40 hours;(1)(m)(ii) for an exempt employee, a 14 day, 80 hour payroll cycle;(1)(m)(iii) for a nonexempt hospital employee, the period the division establishes by rule according to the requirements of the FLSA; or(1)(m)(iv) for a nonexempt law enforcement employee as defined in the FLSA:(1)(m)(iv)(A) who is employed by the Department of Natural Resources, the period the division establishes by rule according to the requirements of the FLSA; or(1)(m)(iv)(B) who is employed by a department other than the Department of Natural Resources, the period the division establishes by rule in accordance with Subsection (2).
(2) Except for the Department of Natural Resources, the division shall require each department employing a nonexempt law enforcement employee to designate one of the following work periods applicable to that employee:
(2)(a) 80 hours in a 14 consecutive day payroll cycle; or
(2)(b) 160 hours in a 28 consecutive day payroll cycle.
(3) Each department shall compensate each state employee who works overtime by complying with the requirements of this section.
(4)
(4)(a) Each department shall negotiate and obtain a signed FLSA agreement from each nonexempt employee.
(4)(b) In the FLSA agreement, the nonexempt employee shall elect either to be compensated for overtime by:
(4)(b)(i) taking time off work at the rate of one and one-half hour off for each overtime hour worked; or
(4)(b)(ii) being paid for the overtime worked at the rate of one and one-half times the employee’s regular hourly wage.
(4)(c) A nonexempt employee who elects to take time off under this Subsection (4) shall be paid for any overtime worked in excess of the cap established by the division.
(4)(d) Before working any overtime, a nonexempt employee shall obtain authorization to work overtime from the employee’s immediate supervisor.
(4)(e) Each department shall:
(4)(e)(i) for an employee who elects to be compensated with time off for overtime, allow overtime earned during a fiscal year to be accumulated; and
(4)(e)(ii) for an employee who elects to be paid for overtime worked, pay them for overtime worked in the paycheck for the pay period in which the employee worked the overtime.
(4)(f) If a department pays a nonexempt employee for overtime, that department shall charge that payment to that department’s budget.
(4)(g) At the end of each fiscal year, the Division of Finance shall total all the accrued overtime hours for nonexempt employees and charge that total against the appropriate fund or subfund.
(5)
(5)(a)
(5)(a)(i) Except as provided in Subsection (5)(a)(ii), each department shall compensate each exempt employee who works overtime by granting the employee time off at the rate of one hour off for each hour of overtime worked.
(5)(a)(ii) The director of the division may grant limited exceptions to the compensation requirement described in Subsection (5)(a)(i), where work circumstances dictate, by authorizing a department to pay an exempt employee for overtime worked at the employee’s regular hourly wage if that department has funds available.
(5)(b)
(5)(b)(i) Each department shall:
(5)(b)(i)(A) establish in its written human resource policies a uniform annual date for each division that is at the end of any pay period; and
(5)(b)(i)(B) communicate the uniform annual date to its employees.
(5)(b)(ii) If any department fails to establish a uniform annual date as required by this Subsection (5), the director of the division, in conjunction with the director of the Division of Finance, shall establish the date for that department.
(5)(c) The overtime authorized for an exempt employee under this Subsection (5) is not an entitlement, a benefit, or a vested right.
(5)(d) At the end of the overtime year, upon transfer to another department at any time, and upon termination, retirement, or other situations where the employee will not return to work before the end of the overtime year:
(5)(d)(i) any of an exempt employee’s overtime that is more than the maximum established by division rule lapses; and
(5)(d)(ii) unless authorized by the director of the division under Subsection (5)(a)(ii), a department may not compensate the exempt employee for that lapsed overtime by paying the employee for the overtime or by granting the employee time off for the lapsed overtime.
(5)(e) Before working any overtime, each exempt employee shall obtain authorization to work overtime from the exempt employee’s immediate supervisor.
(5)(f) If a department pays an exempt employee for overtime under authorization from the director of the division, that department shall charge that payment to that department’s budget in the pay period earned.
(6) The division shall:
(6)(a) ensure that the provisions of the FLSA and this section are implemented throughout state government;
(6)(b) determine, for each state employee, whether the employee is exempt, nonexempt, law enforcement, or has some other status under the FLSA;
(6)(c) in coordination with modifications to the systems operated by the Division of Finance, make rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act:
(6)(c)(i) establishing procedures for recording overtime worked that comply with FLSA requirements;
(6)(c)(ii) establishing requirements governing overtime worked while traveling and procedures for recording that overtime that comply with FLSA requirements;
(6)(c)(iii) establishing requirements governing overtime worked if the employee is “on call” and procedures for recording that overtime that comply with FLSA requirements;
(6)(c)(iv) establishing requirements governing overtime worked while an employee is being trained and procedures for recording that overtime that comply with FLSA requirements;
(6)(c)(v) subject to the FLSA and Subsection (2), establishing the maximum number of hours that a nonexempt employee may accrue before a department is required to pay the employee for the overtime worked;
(6)(c)(vi) subject to the FLSA, establishing the maximum number of overtime hours for an exempt employee that do not lapse; and
(6)(c)(vii) establishing procedures for adjudicating appeals of an FLSA determination made by the division as required by this section;
(6)(d) monitor departments for compliance with the FLSA; and
(6)(e) recommend to the Legislature and the governor any statutory changes necessary because of federal government action.
(7)
(7)(a) In coordination with the procedures for recording overtime worked established in rule by the division, the Division of Finance shall modify its payroll and human resource systems to accommodate those procedures.
(7)(b) Notwithstanding the procedures and requirements of Title 63G, Chapter 4, Administrative Procedures Act, Section 63A-17-602 , and Section 67-19a-301 , an employee who is aggrieved by the FLSA designation made by the division as required by this section may appeal that determination to the director of the division by following the procedures and requirements established in division rule.
(7)(c) Upon receipt of an appeal under this section, the director shall notify the executive director of the employee’s department that the appeal has been filed.
(7)(d) If the employee is aggrieved by the decision of the director, the employee shall appeal that determination to the Department of Labor, Wage and Hour Division, according to the procedures and requirements of federal law.