The Fair Labor Standards Act (FLSA)

For additional questions regarding overtime, the FLSA, or any other related questions, please contact your HR Consultant at 568-7247.




What is the Fair Labor Standards Act (FLSA)?

The Fair Labor Standards Act, more commonly known as FLSA, is a federal wage and hour law which was passed in 1938.  The FLSA establishes minimum wage, overtime pay, recordkeeping, and child labor standards affecting full-time and part-time employees in the private sector and in Federal, State, and local governments.  Compliance with the FLSA is enforced by the Wage and Hour Division of the U.S. Department of Labor (DOL). 

The FLSA requires employers to pay employees at least the minimum wage, currently $7.25 an hour. The FLSA provides some employees with an exemption from the overtime requirements if they meet certain “white collar” exemption tests.  This exemption provides an exception to the overtime rules for employees who meet the exemption tests for administrative, professional, executive, outside salesperson, and computer employees.

What is the difference between an exempt and nonexempt employee?

Under the federal FLSA, a nonexempt employee is one who is entitled to at least the minimum wage for each hour worked and to overtime whenever working more than 40 hours in a workweek.  Any employee may be classified as nonexempt.

By contrast, an employee who is exempt from the overtime provisions of the FLSA is not eligible to be paid overtime by the university.  In order to be exempt from overtime, the employee’s job duties performed must meet one of the FLSA exemption tests, must be paid on a fixed salary basis at a rate of at least $455 per week ($23,660 annually).

What is overtime?

Employees designated as nonexempt by the FLSA must receive cash compensation for hours physically worked in excess of 40 in a workweek at a rate not less than one and one-half their regular rates of pay. This is referred to as "overtime" pay. 

What is the JMU workweek?

The standard JMU workweek begins 12:01 a.m. Sunday and ends at midnight the following Saturday, except for those employees whose workweek is designated differently.

How is the FLSA status determined?

Typically an employee must satisfy three requirements to qualify for exemption from the overtime requirements of the FLSA:

  • Currently, the employee must earn a salary of $455 per week ($23,660 annually). 
  • The employee must receive pay on a salary basis.
  • The employee’s primary job duty must be a recognized exempt duty under the applicable exemption tests.
  • JMU Human Resources is responsible for determining the FLSA status of all positions at the university.

What does it mean to be paid on a salary basis?

Being paid on a “salary basis” means that the employee regularly receives a predetermined amount of pay constituting all or part of the employee’s salary, which is not subject to reduction because of variations in the quality or quantity of work performed.

In other words, exempt employees must receive their full salary for any week in which they perform work without regard to the number of days worked or how well the job was performed.

What is a primary duty?

An employee’s primary duty is “the principal, main, major or most important duty that the employee performs” as defined by the FLSA.  A primary duty may be deemed exempt if it requires a high-level of discretion and independent judgement with respect to matters of significance.

While an employee spending 50% of his or her time on exempt work will typically satisfy the primary duty requirement, it is important to note that time alone is not the sole test when determining if a primary duty is exempt. 

NOTE: An employee’s working title or classification is not sufficient to establish exempt status. 

How do I submit overtime for an employee?

For full-time non-exempt employees, supervisors must submit an authorized Record of Overtime Payform to Payroll Services.

For wage (part-time and student) employees, overtime hours must be properly reported to Payroll Services on the JMU Time Entry Panels.  Care should be taken not to report overtime hours as regular hours. 

Additional information pertaining to the Overtime Leave provision is available in JMU Policy 1303 – Provisions for Granting Overtime & Compensatory Leave. 

Can I offer overtime leave in lieu of cash for overtime? If so, how?

Yes.  Under current policy, as an alternative to cash payments for overtime hours worked, a supervisor may choose to offer their full-time non-exempt employees the option of receiving Overtime Leave. When using overtime leave as an alternative, the supervisor should discuss the option with the employee who is expected to incur overtime hours. The employee may then choose either to receive cash payment for overtime hours worked or Overtime Leave as compensation.

If the employee chooses cash payment, the procedure for reporting the overtime hours directly to the Payroll Office applies. However, if the employee chooses the Overtime Leave option, the supervisor will complete the Overtime Leave Form for the overtime hours worked and submit it to Human Resources. The form must include the information used by the supervisor to calculate the Overtime Leave hours earned (essentially, one and one-half times the number of hours actually worked in excess of 40 in the workweek).

Additional information and stipulations pertaining to the Overtime Leave provision are available in JMU Policy 1303 – Provisions for Granting Overtime & Compensatory Leave. 

What are the recordkeeping requirements for non-exempt employees?

The Student and Wage Employee Time Sheet must be maintained for each non-exempt wage (part-time and student) employee.

Time and Attendance Record for all full-time non-exempt employees (Classified Staff and A&P Faculty) must be maintained. Time records must include regular hours worked, leave taken, leave without pay, overtime/compensatory hours worked, holidays, and scheduled days off. Time and attendance records are completed on an annual basis and are retained in Human Resources for a period of 5 years.

The employee and supervisor signatures must be on the Student and Wage Employee Time Sheet for each payroll period to certify that the time recorded is accurate.

How can I confirm whether my employees are exempt or non-exempt?

  • The FLSA status for full-time classified employees is indicated on the Employee Work Profile (EWP) or position description.
  • Under state policy, all wage positions are non-exempt.
  • Contact your HR Consultant for FLSA status inquiries.  

Does the FLSA status affect Administrative & Professional Faculty?

Yes, job classifications alone do not determine FLSA status (See question #7).

Does the FLSA address some of the unique jobs within institutions of higher education?

While institutions of higher education are generally covered by the FLSA's minimum wage and overtime provisions, several provisions apply to employees at these institutions that exempt them from overtime requirements. 

  • Teachers are exempt from overtime if their primary duty is teaching, tutoring, instructing or lecturing.  This includes regular academic teachers, professors, adjunct instructors, teachers of skilled and semi-skilled trades and occupations, and vocal or instrument music teachers. In addition, the salary level test does not apply to the teaching exemption.
  • Athletic coaches and assistant athletic coaches are exempt are exempt from overtime if their primary duty involves teaching. This includes instructing athletes on how to perform in their sport. Those who primarily perform recruiting activities, breaking down film, and other manual labor, office or otherwise are not considered “teachers” and will not  meet the exemption requirements unless paid at least $455 per week ($23,660 annually) and meet one of the “white collar” exemption duties tests.
  • Administrative academic personnel that help run higher education institutions and interact with students outside the classroom, such as department heads, academic counselors and advisors, intervention specialists and others with similar responsibilities are subject to a special salary threshold that does not apply to white-collar employees outside of higher education. Instead, they are not eligible for overtime if they are paid at least as much as the entrance salary for teachers at their institution.
  • The DOL typically views graduate and undergraduate students engaged in research under a faculty member's supervision in the course of obtaining a degree to be in an educational relationship and not an employment relationship with the school.  As such, these workers are not entitled to overtime.
  • Graduate students whose primary duty is teaching or serving as a teaching assistant generally qualify for the teaching exemption and are not entitled to overtime.
  • Postdoctoral researchers who engage only in research and do not teach are generally nonexempt and are entitled to overtime.  Postdoctoral researchers that have a primary duty of teaching may qualify for the teaching exemption.
  • Student residential assistants enrolled in bona fide educational programs who receive reduced room or board charges or tuition credits from the university are not generally considered employees under the FLSA; therefore, they are not subject to the FLSA’s overtime requirements.  

Are employees who earn more than $23,660 per year automatically exempt from the overtime rules?

No, even if an employee satisfies the minimum salary threshold of $455 per week ($23,660 annually), the primary job duty performed must meet the “duties test” under the FLSA to be exempt from the overtime rules. 

May a non-exempt employee volunteer to stay late to complete work, work from home, or work on the weekend without compensation?

No.  An employee who is eligible for overtime cannot volunteer to work “off the clock” and is not permitted to waive his/her rights under the FLSA. 

Does overtime have to be authorized by my supervisor?

Yes.  Overtime must be pre-approved by your supervisor.  Failure to request approval may result in disciplinary action. 

If an employee works beyond his/her scheduled hours or works from home without prior authorization, must the employee still be paid for these hours?

Yes.  If the employee does not receive prior permission to work overtime, he/she must still be paid for these hours.  However, employees will be subject to disciplinary action if they work beyond 40 hours in a workweek without prior approval. 

It is the duty of management to exercise control to ensure that work is not performed beyond scheduled hours without prior approval, to counsel the employee, and to initiate disciplinary action if the process has not been followed. 

May an employees schedule be adjusted to avoid overtime?

Yes. An employee, with supervisor approval, may adjust his/her schedule during the workweek to offset extended workdays. Alternatively, the supervisor may require that the employee adjust his/her schedule. 

For example, if an employee needs to work into the evening (e.g., two hours later than normal), it may be possible to allow the employee to arrive to work two hours later another day, provided this does not disrupt business operations and that the adjustment occurs within the same workweek. 

If non-exempt employees work during lunch, will it count towards the 40 hour workweek?

Yes. Non-exempt employees may not work during their lunch break.  If they do, this time counts as hours worked.  Performance of any work duties, such as answering phones or emails during the lunch break, is considered work and must be compensated accordingly. 

In regards to time worked does the FLSA impact employees who use electronic devices, such as smartphones or laptops, for work-related purposes outside of regular work hours?

Yes. Performance of any work duty, such as answering phones or emails during off hours, is considered work and must be compensated accordingly.

Are there special rules related to travel for non-exempt employees?

Yes.  Excluding normal commuting time, non-exempt employees should be compensated for all travel unless it is:

  1. overnight;
  2. outside of regular work hours;
  3. on a common carrier or as a passenger; or
  4. where no work is done.

However, special rules apply to special situations.  Please refer to FLSA and Travel Time for Non-Exempt Employees for additional guidance. 

Are full-time non-exempt employees permitted to have a concurrent part-time position?

Yes.  However, the employee must be paid a weighted overtime average for hours worked in the part-time position.  The weighted overtime average includes earnings from both the full-time and part-time position. 

Departments considering hiring a full-time, non-exempt employee into a part-time position should contact their HR Consultant for guidance.

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